R. v. Osman

R. v. Osman Collection Decisions of the Court of Appeal Date 2025-07-16 Neutral citation 2025 ONCA 516 Docket numbers C70790 Judges van Rensburg, Katherine; Huscroft, Grant; Copeland, Jill M. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Osman, 2025 ONCA 516 DATE: 20250716 DOCKET: C70790 van Rensburg, Huscroft and Copeland JJ.A. BETWEEN His Majesty the King Appellant and Abdullahi Osman Respondent Susan Reid and Kevin Pitt, for the appellant Nicolas M. Rouleau and Misha Feldmann, for the respondent Heard: February 11, 2025 On appeal from the directed verdict of acquittal entered on May 10, 2022 by Justice Peter Bawden of the Superior Court of Justice, with reasons reported at 2022 ONSC 4484. Copeland J.A.: Introduction [1] This is a Crown appeal from a directed verdict of acquittal on a charge of being an accessory after the fact to murder. [2] Marcel Teme was shot by Ibrahim Khiar in Kensington Market on the night of July 1, 2018. He died three days later. The respondent was with Mr. Khiar at the time of the shooting and witnessed the shooting. Immediately after the shooting, the respondent helped Mr. Khiar flee the scene. It is not in dispute that all of the respondent’s actions assisting Mr. Khiar to escape took place before Mr. Teme died. [3] The respondent was charged with being an accessory after the fact to the murder of Mr. Teme, contrary to s. 240 of the Criminal Code, R.S.C. 1985, c. C-46. The respondent was tried jointly with Mr. Khiar, who was charged with the second-degree murder of Mr. Teme, as well as three counts each of aggravated assault and reckless discharge of a firearm in relation to other people hit by the gunfire. At the close of the Crown’s case, the trial judge granted the respondent’s motion for a directed verdict of acquittal. Mr. Khiar was ultimately found guilty by the jury of the lesser and included offence of manslaughter in relation to Mr. Teme’s death, as well as all of the remaining counts relating to others hit by the gunfire.[1] [4] The Crown appeals from the directed verdict. The Crown does not contest the respondent’s acquittal on the charge of being an accessory after the fact to murder (and did not contest it before the trial judge); however, the Crown contends that the trial judge erred in finding that the offence of being an accessory after the fact to attempted murder, contrary to s. 463(a) of the Criminal Code, is not an included offence to the offence of being an accessory after the fact to murder in s. 240, and as a result, erred in declining to leave for the jury’s consideration the offence of being an accessory after the fact to attempted murder. [5] I would dismiss the appeal. The trial judge was correct in declining to leave the offence of being an accessory after the fact to attempted murder to the jury as an included offence to the offence of being an accessory after the fact to murder. There was no air of reality to accessory after the fact to attempted murder in this case. [6] Where an accused is charged with being an accessory after the fact to murder, the Crown must prove that the principal committed murder, or an included offence to murder, and that at the time the accessory assisted the principal to escape, the accessory knew that the principal had committed murder, or an included offence to murder. As a matter of law, attempted murder can be an included offence to a charge of murder. However, cases where there will be an air of reality to the principal having committed attempted murder where the victim dies are rare. The rare cases where courts have found an air of reality to attempted murder despite the death of the victim involve circumstances where there was a live issue whether the acts of the accused caused the death of the victim. In most cases where the victim dies, the principal will be guilty of either murder or manslaughter, rather than attempted murder. [7] Trial judges are obliged to leave with the jury all included offences for which there is an air of reality. Because it is possible, although rare, for there to be an air of reality to attempted murder as an included offence to murder where the victim dies, it is also possible (and also rare) for there to be an air of reality 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. [8] However, this is not one of those rare cases where, despite the death of the victim, there is an air of reality to accessory after the fact to attempted murder. In this case, it was not in dispute that the actions of the principal, Mr. Khiar, caused the death of the victim, Mr. Teme. On the evidence in this trial, there was no air of reality to the prospect that the Crown would fail to prove – either in relation to Mr. Khiar or as an element of the accessory charge against the respondent – that Mr. Khiar killed Mr. Teme, but would prove that Mr. Khiar attempted to kill Mr. Teme. Subject to Mr. Khiar’s claim of self-defence, there was only an air of reality that he committed either murder or manslaughter. As a result, the trial judge was correct to decline to leave the offence of being an accessory after the fact to attempted murder to the jury in relation to the respondent. (1) Factual background [9] The factual inferences that were open to the jury on the trial record, and which were the basis on which the trial judge considered the directed verdict motion, are not in dispute on appeal. For this reason, rather than summarize the trial evidence, I reproduce the trial judge’s summary of the available inferences: There was evidence which would permit the jury to find the following: a. Khiar, Osman and their two female companions were walking through Kensington Market at 10:20 pm when the deceased, Marcel Teme, approached them. b. Teme spoke to Khiar and Osman for roughly a minute and said something which annoyed Osman. Osman shoved Teme, which prompted Khiar to step between the two men. c. Osman stepped around Khiar and moved aggressively towards Teme. d. Teme punched Osman in the face, causing Osman to fall backwards. e. Khiar immediately produced a handgun and fired eight shots at Teme, hitting him twice in the torso. The last four shots were aimed at the chest of Teme while he was on the ground. f. Osman witnessed the entire shooting. He and Khiar ran from the scene together after the last shot was fired. g. Marcel Teme was obviously still alive when Khiar and Osman fled. His torso was raised off the ground and he was waving his arms. Osman turned to look at Teme as he ran. h. Osman attempted to cover his face as he escaped the scene. He also directed the two women who had been present during the shooting to separate from himself and Khiar. i. Osman ran to his car and got into the driver’s seat. Khiar joined him in the passenger seat. They drove out of Kensington Market but crashed into the back of another car at the nearby intersection of Dundas Street and Spadina Avenue. j. Khiar got out of the car and continued to escape on foot. Osman followed him seconds later, abandoning the rented vehicle. k. Marcel Teme died in hospital three days after the shooting. The cause of death was two gunshot wounds to the abdomen. In sum, the jury could reasonably have found that Osman assisted Khiar to escape the scene, knowing that Khiar had intended to kill Teme and that he had at least caused him serious bodily harm. Osman could not have known that Khiar had committed a murder at the time that he assisted him to escape because the victim would remain alive for another three days. (2) The trial judge’s reasons on the directed verdict motion [10] The Crown conceded before the trial judge, and accepts on appeal, that it was appropriate for the trial judge to direct a verdict of acquittal on the full offence charged against the respondent because the respondent’s acts in assisting Mr. Khiar to escape were completed before Mr. Teme died. I discuss the law in relation to this principle below. The live issue in the directed verdict motion, and on appeal, was whether the offence of being an accessory after the fact to attempted murder should be left to the jury on the basis that it was included in the offence charged. The trial judge rejected the Crown’s submission that the offence of being an accessory after the fact to attempted murder is an included offence to being an accessory after the fact to murder. [11] The trial judge rejected the Crown’s invitation to follow the reasoning of the British Columbia Supreme Court in R. v. Bedi, 2016 BCSC 1930, which held that 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, pursuant to s. 662(1) of the Criminal Code. The trial judge concluded that Bedi could not be reconciled with the Supreme Court decision in R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371. He further concluded that it would be unfair to leave the offence of being an accessory after the fact to attempted murder to the jury because the respondent was not on notice that he could be convicted of that offence. [12] The trial judge held that for an offence to be an included offence pursuant to s. 662(1) of the Criminal Code “by the enactment creating [the offence]”, as that section was interpreted in G.R., it must be included in every circumstance. He concluded that because murder can be committed without the specific intent required for attempted murder, attempted murder is not an included offence to murder by the language of the enactment under s. 662(1) of the Criminal Code. The trial judge also held, based on G.R., that the Crown could not rely on the fact that there was evidence from which a jury could infer that the respondent knew that Mr. Khiar intended to kill Mr. Teme – specifically, that the respondent had seen Mr. Khiar shoot Mr. Teme eight times from close range – as the basis to argue that accessory after the fact to attempted murder was an included offence. [13] The trial judge found that it would be fundamentally unfair to say that the respondent was on notice that he could be convicted of accessory after the fact to attempted murder in the circumstances of this case. The respondent was charged only with the count of accessory after the fact to murder. The Crown realized at the stage of the directed verdict motion that it could not prove that count. Given the failure to lay any other charge that could be proven on the trial evidence, the trial judge found it would be unfair for the court to correct the Crown’s error by finding an included offence not contemplated by the Crown at the outset of the trial. He observed that there were other accessory charges that could have been proven based on the evidence at trial, had the appropriate charges been laid. Further, if the Crown believed that there was a factual basis to convict the respondent of accessory after the fact to attempted murder, that charge could have been included on the indictment. [14] The trial judge also noted that the Crown’s argument that the respondent would have been put on notice that accessory after the fact to attempted murder was an included offence to the charge of being an accessory after the fact to murder was not supported by Ontario jurisprudence, including R. v. Knott, 2006 CanLII 6588 (Ont. S.C.), and R. v. Maadani & Rashed, 2021 ONSC 8244.[2] The trial judge observed that there were other avenues available for the respondent to have pursued his defence through cross-examination of the Crown witnesses had he been on notice that he could be convicted of being an accessory after the fact to attempted murder. [15] The trial judge also rejected the Crown’s argument that the decision of the Supreme Court in R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, supports the conclusion that accessory after the fact to attempted murder is an included offence to accessory after the fact to murder pursuant to s. 660 of the Criminal Code. In his view, the Crown submission improperly conflated included offences with attempts. [16] The trial judge distinguished Sarrazin on its particular facts. In Sarrazin, the accused was charged with murder. The evidence in Sarrazin left no doubt that the accused intended to kill the victim, however there was a live issue on the medical evidence whether the acts of the accused caused the victim’s death. In those unusual circumstances, there was a basis to instruct the jury on attempted murder, pursuant to s. 660 of the Criminal Code. The trial judge held that in this case, unlike Sarrazin, attempted murder was not an available verdict for Mr. Khiar, the principal, because there was no doubt that his actions killed Mr. Teme. There was no air of reality to the respondent being found guilty of accessory to attempted murder because there was no air of reality to Mr. Khiar being convicted of attempted murder. (3) Positions of the parties [17] In setting out the positions of the parties, I refer to the Criminal Code provisions which are central to the arguments in this appeal. The text of the relevant provisions is discussed in the analysis further below. At this stage, I outline only the subject matter of the relevant provisions of the Criminal Code, to assist the reader in following the positions of the parties. Section 23 defines the scope of liability for accessory after the fact offences. Sections 23.1 and 592 permit the charging and conviction of a person for an accessory after the fact offence even if the principal is not charged or not convicted. Section 660 provides that an accused may be convicted of an attempt to commit an offence where the offence charged is not proven. Section 662 defines the circumstances where offences are included within an offence charged. Section 240 provides the punishment for the offence of being an accessory after the fact to murder. Section 463 provides the punishments for all other accessory after the fact offences. (i) Position of the Crown [18] The Crown argues that the trial judge erred in holding that the offence of being an accessory after the fact to attempted murder is not an included offence to being an accessory after the fact to murder. The Crown argues that the decision of Nordheimer J., as he then was, in Knott is incorrect. [19] The Crown, relying on ss. 23.1 and 592 of the Criminal Code, argues that the liability of a party as an accessory does not depend on whether the principal can be indicted or convicted. Accessory offences are administration of justice offences. The Crown argues that conviction for an accessory offence depends on what the alleged accessory knew when they assisted the principal to evade apprehension. Accessory offences are not an extension of the principal’s offence. [20] The Crown relies on this court’s decision in R. v. Duong (1998), 124 C.C.C. (3d) 392 (“Duong 1998”), for the proposition that a person charged with being an accessory after the fact to a specific offence can be found liable for being an accessory after the fact to an offence included in the specific offence. For example, 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. [21] The Crown argues that attempted murder is an included offence to murder pursuant to s. 662(1) on the basis that, where an offence as described in the enacting provision of the Criminal Code can be committed by multiple modes, an offence is an included offence “if the essential elements of that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence”: R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457, at paras. 53-59, 63-71; Bedi, at paras. 174-76. [22] On this basis, the Crown argues that attempted murder is an included offence to murder, pursuant to s. 662(1) of the Criminal Code, whether or not the specific intent to kill is pleaded in the indictment. [23] The Crown argues that attempted murder can also be an included offence to murder pursuant to s. 660 of the Criminal Code, so long as there is a factual basis for a jury to find specific intent to kill, relying on the Supreme Court decision in Sarrazin. To similar effect, the Crown argues that this court’s decision in R. v. Forcillo, 2018 ONCA 402, 361 C.C.C. (3d) 161, supports the proposition that liability for attempted murder can exist even where the victim dies. [24] The Crown argues that a person may be convicted of an offence based on a portion of a transaction. The Crown further argues that s. 661 of the Criminal Code contemplates that a person charged with an attempt to commit an offence may be convicted of the attempt, notwithstanding that the trial evidence proves the full offence. [25] Combining these various threads, the Crown argues that attempted murder is an included offence to murder. This court held in Duong 1998 that a person charged with being an accessory after the fact to murder can be convicted of being an accessory to an included offence to murder. As a result, if the Crown is correct that attempted murder is an included offence to murder, then an accused charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to attempted murder on the basis of acts of aid to the principal that occurred after the acts by the principal, but before the victim died – assuming the Crown can prove the other elements of the offence. [26] The Crown argues that Knott is wrongly decided and contains a number of errors. First, the Crown argues that in light of Sarrazin and Tenthorey, the concern raised in Knott about whether attempted murder is an included offence to murder is erroneous.[3] Second, the Crown argues that Nordheimer J. erred in Knott in failing to recognize that liability of the alleged accessory is distinct from that of the principal. On this basis, the Crown argues that the offence of being an accessory after the fact to murder can be left to the jury for the alleged accessory even if there is no air of reality to the principal being convicted of attempted murder, rather than murder. Third, the Crown argues that Nordheimer J. erred in Knott in implicitly requiring the Crown to specifically plead a lesser and included accessory offence (i.e., as a separate count). The Crown argues that this has the effect of promoting “over charging” and could lead to an overburdened indictment, with increased risk of confusion and inconsistent verdicts. (ii) Position of the respondent [27] The respondent argues that the trial judge was correct in concluding that the offence of being an accessory after the fact to attempted murder is not an included offence to being an accessory after the fact to murder. Thus, the trial judge was correct to grant the directed verdict of acquittal and to decline to leave the offence of being an accessory after the fact to attempted murder to the jury. The respondent further argues that the trial judge made no error in concluding that it would be fundamentally unfair to the respondent to say that he was on notice that he could be convicted of being an accessory after the fact to attempted murder. [28] The respondent argues that included offences are governed by the provisions of the Criminal Code. The Supreme Court has cautioned that the test for included offences is “strict”: G.R., at para. 25. Under s. 662 of the Criminal Code, an offence is an included offence only if it is “necessarily included” in the offence charged “as described in the enactment creating it or as charged in the count” or if it is expressly stated to be an included offence in the Criminal Code (in particular in subsections 662(2) to (6)). [29] The respondent submits that the offence of being an accessory after the fact to attempted murder is not an included offence to being an accessory after the fact to murder under any of these categories for included offences. [30] First, the respondent points out that the Criminal Code contains no statutory exception specifying that being an accessory after the fact to attempted murder is an included offence to being an accessory after the fact to murder. The offence of being an accessory after the fact to attempted murder is not an included offence specified in s. 662(2) to (6). It is also not captured by s. 660. [31] Second, the respondent argues that where a person is charged with being an accessory after the fact to murder under s. 240 of the Criminal Code, the offence of being an accessory after the fact to attempted murder, an offence under s. 463 of the Criminal Code, is not an included offence in the enactment creating the offence charged within the meaning of s. 662(1) of the Criminal Code. Offences included by the wording of the enactment are those that are “necessarily committed in the commission of the principal offence as described in the enactment creating [the principal offence]”: G.R., at para. 30. The respondent argues that the elements of the offence of being an accessory after the fact to attempted murder are not necessarily included in the offence of being an accessory after the fact to murder because s. 240 of the Criminal Code does not specify the means by which accessory after the fact to murder can be committed. [32] Third, the respondent asserts that in this case, the offence of being an accessory after the fact to attempted murder is not included as an offence based on the facts specifically pleaded in the count in the indictment. The indictment against the respondent contains no words or description of facts that disclose the commission of an “included” offence. Nothing in the words of the indictment put the respondent on notice that the charge of being an accessory after the fact to an attempted murder would be put to the jury. Indeed, the wording of the count focused on Mr. Osman’s conduct after he had learned of Mr. Khiar’s death, not before. The indictment particularized that the respondent received, comforted, or assisted Mr. Khiar “knowing that [Mr. Khiar] had murdered Marcel Teme” (emphasis added). (4) Standard of review [33] There is no dispute about the standard of review on an appeal from a directed verdict and the applicable analysis on a directed verdict motion. [34] The Crown may appeal a directed verdict of acquittal on a question of law alone, pursuant to s. 676(1)(a) of the Criminal Code. The standard of review on an appeal from a directed verdict of acquittal is correctness: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48; R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 1-4. Further, whether an included offence arises on the evidence and should have been left to the jury is also reviewable on a correctness standard: R. v. Doxtator, 2022 ONCA 155, 161 O.R. (3d) 81, at para. 25, rev’d but not on this point, 2022 SCC 40 (Richard Doxtator) and leave to appeal refused, [2022] S.C.C.A. No. 121 (Jasmine Doxtator). [35] In considering whether to grant a directed verdict of acquittal, a trial judge must consider whether there is any evidence upon which a reasonable jury, properly instructed, could render a guilty verdict. Where the evidence includes circumstantial evidence, the trial judge must engage in a limited weighing of the circumstantial evidence in order to determine what reasonable inferences may be drawn from it (in the context of the evidence as a whole). In engaging in this task, the judge does not assess credibility, but rather, considers whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-23. (5) Analysis [36] Although my reasons differ somewhat from those of the trial judge, I conclude that he was correct in declining to leave the offence of being an accessory after the fact to attempted murder to the jury. I explain this conclusion by structuring my analysis around the following issues: (i) the law in relation to accessory offences in general and being an accessory after the fact to murder in particular; (ii) the law in relation to included offences; (iii) whether attempted murder is an included offence to murder, and by extension, whether being an accessory after the fact to attempted murder is an included offence to being an accessory after the fact to murder; and (iv) whether the trial judge was correct in holding that there was no air of reality to the offence of being an accessory after the fact to attempted murder and declining to instruct the jury on that offence. After that analysis I address two additional issues: (v) the legal policy concerns that underlie the Crown’s position on this appeal; and (vi) issues related to particularization and timing for a count charging the offence of being an accessory after the fact to murder as they relate to notice to the accused of the acts that form the basis for a charge. (i) Principles applicable to accessory offences and the offence of being an accessory after the fact to murder [37] I begin with a review of the law applicable to accessory offences in general and the offence of being an accessory after the fact to murder in particular. [38] Accessory after the fact offences are offences against the administration of justice. By knowingly assisting the principal to escape, the accessory interferes with the investigation of a criminal offence and the administration of justice: R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.), at paras. 27-28. [39] The penalty provision for the offence of being an accessory after the fact to murder is contained in s. 240 of the Criminal Code. Parliament chose to enact a higher maximum penalty for the offence of being an accessory after the fact to murder – imprisonment for life – than the general penalties for other accessory after the fact offences set out in s. 463. [40] The conduct that constitutes the offence of being an accessory after the fact to murder is, like other accessory offences, defined by s. 23 of the Criminal Code. Section 23 of the Criminal Code provides as follows: An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape. [Emphasis added.] [41] In the case of being an accessory after the fact to murder, the elements of the specified offence the accessory is alleged to have assisted the principal to escape are defined by s. 229. The elements of the underlying specified offence are relevant to the knowledge requirement in s. 23 and the requirement for proof that the principal committed the specified offence. [42] The Crown must prove the following elements to prove a charge of accessory after the fact to murder: 1. that the principal[4] committed murder (or, as I explain below, an included offence to murder); 2. that the alleged accessory knew that the principal committed murder (or an included offence); 3. that the accessory provided assistance to the principal; and 4. that the accessory provided assistance for the purpose of helping the principal to escape. See: David Watt, Watt’s Manual of Criminal Jury Instructions, 2024, (Toronto: Thomson Reuters, 2024) at Final 103, p. 443; Duong 1998, at pp. 399-401, and 403; Knott, at pp. 4-5; D. Murray Brown, “Accessory After the Fact”, 2004 National Criminal Law Program: Substantive Criminal Law, Vol. 1, Section 2.5, at pp. 2-3. [43] Before proceeding further into the jurisprudence on the elements of the offence of accessory after the fact to murder, I pause to outline the legal principle that gives rise to the issue in this appeal. [44] The parties are in agreement that as an element of the offence of being an accessory after the fact to murder, the Crown must prove that the accessory’s acts that are alleged to have assisted the principal were committed after the victim is dead (combined with proof that the accessory knew about the unlawful killing at the time they assisted the principal). This requirement is explained by Blackstone: The felony must be complete at the time the assistance is given, else it makes not the assistant an accessory. As, if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent; this does not make him accessory to homicide; for till death ensues, there is no felony committed. Commentaries on the Laws of England in Four Books by Sir William Blackstone, 1898, Book Four, p. 1454. See also: Knott, at p. 9; R. v. B.(A.), 1999 CanLII 6762 (B.C.S.C.), at paras. 19-22. [45] The requirement that the acts be committed after the victim is dead is consistent with the higher penalty for being an accessory after the fact to murder in s. 240 of the Criminal Code, as compared to the general penalty for accessory offences in s. 463: Duong 1998, at p. 399; B.(A.), at para. 22. It is also consistent with the knowledge requirement in s. 23 of the Criminal Code. Section 23 requires that an accessory after the fact commit the acts aiding the principal “knowing” that the principal “has been a party to the offence”. To the extent that actual knowledge is relied on by the Crown to satisfy the mens rea requirement, a person cannot actually know the victim is dead until they are dead. As Cory and Iacobucci JJ. noted in United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 41: In the Western legal tradition, knowledge is defined as true belief: “The word ‘know’ refers exclusively to true knowledge; we are not said to ‘know’ something that is not so” (Glanville Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 160). [Emphasis in original.] [46] Wilful blindness can also satisfy the mens rea for accessory offences, but is not relied on by the Crown in this case. Wilful blindness is considered in more detail in the companion appeal of Rashed. [47] The requirement that the assisting acts must be done after the death of the victim to constitute the offence of being an accessory after the fact to murder gives rise to the issue in the appeal. There is no dispute that the respondent assisted Mr. Khiar to escape from the scene of the shooting. But it is also not in dispute that those acts took place in the immediate aftermath of the shooting, and were completed long before the death of Mr. Teme, which happened three days later. The Crown accepts that because Mr. Teme was still alive when the respondent assisted Mr. Khiar in escaping, the respondent cannot be convicted of accessory after the fact to murder, and that the trial judge was correct in not leaving the full offence to the jury. [48] The first element of being an accessory after the fact requires the Crown to prove that the principal committed the specified offence (or, as I discuss below, an included offence). Doherty J.A. explained this requirement in Duong 1998: It is usually irrelevant on the trial of an accused that some other person committed a different offence than that charged against the accused. The charge of being an accessory after the fact is, however, an exception to this generalization. To convict an accessory, the Crown must prove that the alleged principal committed the offence set out in the indictment. Here, the appellant could only be convicted if the Crown proved beyond a reasonable doubt that Lam had committed murder: R. v. Anderson (1980), 1980 ABCA 276 (CanLII), 57 C.C.C. (2d) 255 at p. 256 (Alta. C.A.). See also R. v. Dagenais, 2018 ONCA 63, at para. 7. [49] The knowledge requirement in the second element of the accessory offence requires the Crown to prove that, at the time the accessory provided the assistance to the principal, the accessory knew that the principal had committed the specific offence alleged (or, as I discuss below, an included offence). Knowledge on the part of the accessory that the principal committed some criminal offence is insufficient. I note that the case law in relation to the specific offence requirement focuses on the second element of the accessory offence – the accessory’s knowledge that the principal committed the specified offence. This focus of the case law reflects the practical reality that it is more often the knowledge of the alleged accessory that is in dispute than whether the principal committed the specified offence. However, the requirement that an accessory offence must be proven in relation to a specific offence committed by the principal is equally applicable to the first element of the offence – the requirement that the Crown prove that the principal offender committed the offence. [50] Doherty J.A. explained the requirement that the accessory knew of the specific offence committed by the principal in Duong 1998, at pp. 399-401: Section 23(1) contemplates aid given to someone who has committed an offence (the principal) by a person who knew that [the] principal had committed that offence when the assistance was provided…. It is significant that the crime of being an accessory after the fact to murder has its own penalty provision (s. 240) which is more severe than the penalty provision applicable to those who are accessories to other crimes (s. 463). This is a further indication that where the Crown chooses to charge someone with being an accessory after the fact to murder, it cannot gain a conviction based on a more generalized knowledge that the principal had committed some crime. There is little Canadian case law dealing with the knowledge requirement in s. 23(1), perhaps because the language of s. 23(1) is unambiguous…. A charge laid under s. 23(1) must allege the commission of a specific offence (or offences) and the Crown must prove that the alleged accessory knew that the person assisted was a party to that offence. [Emphasis added] [51] The requirements that the Crown prove that the principal committed the specified offence and that a person charged with an accessory offence must have knowledge of the specific offence committed by the principal (as specified in the indictment) are broad enough to cover offences which are included offences to the specified offence. In Duong 1998, at footnote 3, Doherty J.A. noted that it would appear that a person charged with accessory after the fact to murder may be convicted of the included offence of being an accessory after the fact to manslaughter. See also R. v. Webber (1995), 102 C.C.C. (3d) 248 (B.C.C.A.), at paras. 16-25; David Watt, “Accessoryship after the Fact: Substantive, Procedural and Evidentiary Considerations” (1981), 21 C.R. (3d) 307, at pp. 318-19. [52] Based on the fact that accessory after the fact offences are administration of justice offences, and relying on s. 23.1 of the Criminal Code, the Crown argues that the principal’s trial or verdict does not determine the liability of the alleged accessory. [53] As it relates to accessory offences, s. 23.1 provides that s. 23 applies “in respect of an accused notwithstanding the fact that the person whom the accused … receives, comforts or assists cannot be convicted of the offence.”[5] [54] I agree that the principal’s verdict does not determine the liability of the alleged accessory.[6] This is clear from the text of s. 23.1 of the Criminal Code. See also R. v. Duong (2001), 160 C.C.C. (3d) 467 (Ont. C.A.), at para. 19. However, I do not accept the Crown’s submission that seeks to divorce the liability of the accessory entirely from that of the principal. [55] Although accessory offences are administration of justice offences, the liability of the accessory is not freestanding. The liability of the accessory depends on evidence in the accessory’s trial establishing the commission of the specified offence (or an included offence) by the principal. Sections 23.1 and 592 of the Criminal Code provide that the conviction, or even charging, of the principal is not required as a precondition to liability for the accessory. However, those provisions do not have the effect of removing the requirements in the first two elements of accessory after the fact offences that the Crown prove that the principal committed the specified offence (or an included offence) and that, at the time they assisted the principal, the alleged accessory knew that the principal had committed the specified offence (or an included offence): Watt’s Manual of Criminal Jury Instructions, Final 103; Duong 1998 at pp. 399-401, and 403; Watt, “Accessoryship after the Fact”, at pp. 324-25; Don Stuart, Canadian Criminal Law, 8th ed., (Toronto: Thomson Reuters, 2020), at p. 698; D. Murray Brown, “Accessory After the Fact”, at pp. 6-9. [56] Based on the preceding review of the law, a person charged with being an accessory after the fact to murder can be liable for being an accessory after the fact to an included offence to murder. [57] This brings me to the next step of the analysis, whether attempted murder is an included offence to murder, under either s. 660 or s. 662 of the Criminal Code. (ii) Principles applicable to included offences [58] The Criminal Code provisions and jurisprudence in relation to included offences are an expression of the fundamental criminal law principle that an accused is entitled to know the charge or charges they must meet. The counts in an indictment give the accused notice of the charge or charges the Crown is proceeding on. The law of included offences provides a structured framework for the accused and the Crown to know what charges are included within the charge in each count in an indictment, if the Crown proves some, but not all, of the facts required to prove the count(s) charged: G.R., at paras. 2-3, 11-13; R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 133. [59] The law in relation to included offences is statute-based in ss. 660 and 662 of the Criminal Code: Simpson (No. 2), at pp. 131-32; G.R., at para. 29. Sections 660 and 662(1), which are the focus of this appeal, provide as follows: 660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt. ... 662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (b) of an attempt to commit an offence so included. [60] These provisions have been interpreted to mean that offences may be included offences[7] in one of three ways: 1. Offences specifically included by statute; i.e., those offences specified in ss. 662(2) to (6), and attempts provided for in s. 660; 2. Offences included in the enactment creating the offence charged; e.g., common assault in a charge of sexual assault or assault causing bodily harm (s. 662(1)); or, 3. Where the words pleaded in the count set out elements that give notice of a particular included offence (s. 662(1)). G.R., at paras. 25-32; Tenthorey, at para. 52; Simpson (No. 2), at pp. 131-33. [61] Each of these categories of included offences satisfies the requirement of giving notice to the accused of what offences are included in the offence charged. [62] The Crown’s arguments in this appeal rely on a portion of category (1) above (attempts under s. 660 of the Criminal Code) and category (2) (offences included in the enactment creating the offence charged, pursuant to s. 662(1)). [63] To ground the analysis that follows, I elaborate on two aspects of the law in relation to included offences. The first point relates only to s. 662(1). The second relates to both ss. 660 and 662(1). [64] First, in Tenthorey, Paciocco J.A. addressed an issue that is sometimes the subject of confusion in relation to the second category of included offences, offences included by the enactment creating the offence charged, pursuant to s. 662(1). The jurisprudence often describes the requirement for an offence to be included by the wording of the enactment of the charged offence to be that the purported included offence must be “necessarily included” in the charged offence: Tenthorey, at para. 58; G.R., at paras. 25-27, 30-31; Simpson (No. 2), at pp. 135‑37. [65] The “necessarily included” formulation of the test for offences included by the enactment of the charged offence is straightforward to apply when the offence charged can only be committed in one way. If that one way of committing the offence charged cannot be accomplished without committing the offence said to be included, then the accused person will be on notice that the elements of the included offence are in issue, and it is properly an included offence: Tenthorey, at paras. 52-53. [66] However, the “necessarily included” formulation of the test can be misleading when applied to offences that describe more than one mode of commission. An example of this, discussed in Tenthorey, is an unparticularized count of aggravated assault. The offence of aggravated assault in s. 268 of the Criminal Code describes four means to commit the offence: by wounding, maiming, disfiguring, or endangering the life of the victim. Because there are four means of committing the offence in the enactment (s. 268), if the count is not particularized, the accused is on notice that all four means of committing aggravated assault are in issue. An offence which is necessarily included in any one of the four means of committing aggravated assault is an included offence. On this basis, because bodily harm is necessarily included in three of the modes of committing aggravated assault (wounding, maiming, and disfiguring), assault causing bodily harm is an included offence in an unparticularized count of aggravated assault, despite the fact that the fourth means of committing aggravated assault – by endangering life – does not necessarily include causing bodily harm to the victim: Tenthorey, at paras. 54-55; Simpson (No. 2), at p. 139. [67] I return to the Tenthorey decision below in relation to whether attempted murder is an included offence to murder by the enactment of the offence – i.e., whether the elements of attempted murder are necessarily included in a count charging murder, such that the accused will be fairly informed in every case that he will have to meet not only the elements of murder but also the elements of attempted murder. [68] Second, ss. 660 and 662(1) both contain important limiting language in terms of their application. As noted above, included offences are governed by the statutory provisions in the Criminal Code. As such, we must not lose sight of the language of the statutory provisions. I reproduce the provisions again with that language emphasized: 660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt. … 662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (b) of an attempt to commit an offence so included. [Emphasis added.] [69] The formulation of attempts as included offences in s. 660, and that of included offences more generally in s. 662(1), both include a requirement that the “complete” or “whole” offence charged “is not proved”.[8] [70] Focusing on how this summary of the law of included offences is relevant to this appeal, we know from Duong 1998 that an accused 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 next step in the analysis is to consider whether attempted murder is an included offence 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] 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. (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. (v) The underlying legal policy concerns raised by the Crown [110] I return to the legal policy concerns underlying the Crown’s position in this appeal. In this case, there was evidence of culpable conduct by the respondent in a normative or moral sense. He assisted Mr. Khiar to flee the scene of the shooting, knowing that Mr. Khiar had shot and hit Mr. Teme, at least causing him serious bodily harm. Because Mr. Teme died three days later, after the respondent’s acts to assist Mr. Khiar to flee were completed, and because the only charge laid against the respondent was being an accessory after the fact to murder, the conclusion that there was no air of reality to being an accessory after the fact to attempted murder means that no offence could be left to the jury in relation to the respondent. The Crown contends that this is an unsatisfactory result. [111] There are two responses. [112] First, there are Criminal Code offences that the respondent could have been charged with that would have survived a directed verdict motion. The trial judge made this point in his reasons on the directed verdict motion. Doherty J.A. made the same point in Duong 1998, at pp. 400-01, where he observed that a person who aids the perpetrator of a murder, knowing they have committed some offence, but not knowing it was murder, could be charged with attempting to obstruct justice under s. 139(2) of the Criminal Code; see also D. Murray Brown, “Accessory After the Fact”, at pp. 13-14. I note that the maximum punishment for obstruction of justice under s. 139(2) where the Crown proceeds by indictment is 10 years imprisonment. [113] On the evidence in this case, offences available include attempt to obstruct justice under s. 139(2), and accessory after the fact to the unlawful discharge of a firearm with intent (s. 463 by way of s. 244). Not only was the option of charging other offences arising from the facts available, but at least in some cases the Crown and police are alive to the possibility of charging other offences, including other accessory offences. In the companion appeal of Rashed, the accessory offender was charged with and convicted of being an accessory after the fact to possession of a loaded, restricted firearm (although acquitted of being an accessory after the fact to murder). [114] Second, as this court noted almost 30 years ago in Duong 1998, at p. 401, it is open to Parliament to amend the Criminal Code to address this issue. [115] It is for Parliament, not this court, to decide on the approach to amending the Criminal Code, if it chooses to do so. Two possible approaches come to mind, one specific and one general. Parliament could add a subsection to s. 662 of the Criminal Code, specifying that accessory after the fact to attempted murder is an included offence to accessory after the fact to murder, where the accessory knew at the time they provided assistance to the principal that the principal caused serious bodily harm to the victim with the intent to kill, whether or not the victim ultimately died. Or, as this court noted in Duong 1998, Parliament could create an accessory offence which does not require that the accessory know of the specific offence committed by the principal, but rather, requires that the accessory know that the principal committed an indictable offence or a serious violent offence when they assisted the principal to escape. [116] I raise these possibilities simply to emphasize that the legal policy issues identified by the Crown can be addressed either by charging decisions of the police and the Crown or by Parliament. (vi) Particularization of the count in relation to time and the problem of notice to the accused [117] The preceding analysis is sufficient to decide this appeal. However, given my conclusion that the offence of being an accessory after the fact to attempted murder could be left to a jury as an included offence where an accused is charged with being an accessory after the fact to murder in a case where there was an air of reality to it – in particular, in a case where there was a live issue as to whether the acts of the principal caused the death of the victim – I make some observations about the issue of particularization of a count charging the offence of being an accessory after the fact to murder as it relates to time. [118] I begin these observations using the wording of the count in this case charging the respondent with being an accessory after the fact to murder. The accessory count charged as follows: ABDULLAHI OSMAN stands charged that he, on or about and between the 1st day of July in the year 2018, and the 20th day of February in the year 2019, at the City of Toronto, in the Toronto Region did, knowing that Ibrahim KHIAR had murdered Marcel TEME, receive, comfort or assist Ibrahim KHIAR for the purpose of enabling him to escape, contrary to section 240 of the Criminal Code. [Emphasis added.] [119] The language “knowing that Ibrahim KHIAR had murdered Marcel TEME”, combined with the requirement that for a charge of being an accessory after the fact to murder the assisting acts of the accessory must take place after the death of the victim, has the effect that the count charging the respondent with being an accessory after the fact to murder is particularized to exclude the time period before Mr. Teme’s death. The language in the count of “knowing that [the principal] had murdered [the victim]” appears to be the common language used in charging a count of accessory after the fact to murder. The same language was used in the count charging accessory after the fact to murder in the companion appeal Rashed. See also Watt, “Accessoryship after the Fact”, at pp. 311-12. [120] In light of my conclusion that there was no air of reality to the offence of being an accessory after the fact to attempted murder in the respondent’s case, I do not need to consider the impact on this appeal of the temporal particularization of the charge. I highlight the particularization issue because it may have ramifications for the rare case where an accused is charged with being an accessory after the fact to murder and there is an air of reality to leave to the jury the offence of being an accessory after the fact to attempted murder as an included offence. [121] If the count is particularized in a manner similar to the count in this case, it may give rise to issues relating to notice to the accused, the Crown’s obligation to prove particulars, and whether the count can be amended without prejudice to the accused, in the event that there is an air of reality to the offence of being an accessory after the fact to attempted murder in a given case. [122] One can imagine the situation of a person charged with accessory after the fact to the murder in a case like Sarrazin, where causation of death was a live issue. [123] If accessory after the fact to murder and accessory after the fact to attempted murder were charged as separate counts, parallel to the charge against the principal in Forcillo, there would be no problem of notice. The accused would be on notice that any acts assisting the principal to escape after the shooting are in issue, whether before or after the death of the victim. [124] However, if only one count is laid – of being an accessory after the fact to murder – and it is worded like the count in this appeal, then the wording is temporally focused on the period after the victim has died. It could be argued that the accused was not given notice that their acts of assistance rendered prior to the death of the victim would be relied on by the Crown to establish the offence. [125] The Crown argued that a requirement for a separate count alleging the offence of being an accessory after the fact to attempted murder, where the primary charge is being an accessory after the fact to murder, risks “an overburdened indictment, with the increased risk of confusion and of inconsistent verdicts.” I disagree. [126] The benefit of a separate count alleging accessory after the fact to attempted murder is that there can be no doubt about notice to the accused of the allegations the Crown relies on – and that they include acts both before and after the death of the victim. [127] The risks of confusion in jury instructions and inconsistent verdicts arise from the substance of the Crown’s position – that an accused can be liable for being an accessory after the fact to attempted murder for acts of assistance done before the victim dies, despite the victim’s death – not from a requirement to lay a separate count of accessory after the fact to attempted murder. [128] The complexity is the same whether there is a separate count of being an accessory after the fact to attempted murder or whether instructions are given to a jury on being an accessory after the fact to attempted murder as an included offence to being an accessory after the fact to murder. [129] The question of notice to a particular accused, whether the Crown is bound to prove the particularized count, or if the count can be amended without prejudice to the accused should be decided on the facts of a concrete case. But these are issues the Crown and police should bear in mind in their charging decisions in cases involving charges of being an accessory after the fact to murder where there is a live issue about whether the acts of the principal caused the death of the victim. Disposition [130] The trial judge did not err in directing a verdict of acquittal. I would dismiss the appeal. Released: July 16, 2025 “K.M.v.R.” “J. Copeland J.A.” “I agree. K. van Rensburg J.A.” “I agree. Grant Huscroft J.A.” [1] The fact that Mr. Khiar was acquitted of second-degree murder, but convicted of manslaughter, raised an issue on appeal as to the appropriate scope of the retrial, if the Crown appeal were allowed. Because I would not allow the Crown appeal, I need not consider this issue. [2] The decision on this issue in R. v. Rashed was appealed and heard as the companion to this appeal. This court’s decision in the Rashed appeal is released concurrently with this appeal: R. v. Rashed, 2025 ONCA 515. [3] The Crown concedes that Nordheimer J. did not decide Knott on this basis, but argues that the concern about whether attempted murder is an included offence to murder may have infected the balance of his analysis. [4] I use the term “principal” throughout these reasons to describe the perpetrator of an offence who the alleged accessory knowingly assists after the offence. However, the text of s. 23 of the Criminal Code, read together with s. 21, is clear that a person can be an accessory after the fact based on assistance provided to a party to an offence. See also Watt’s Manual of Criminal Jury Instructions, Final Instruction 103, at footnote 2. [5] The Crown also relies on s. 592 in support of the same argument. I do not think s. 592 adds anything for the purposes of this appeal. [6] I would note, however, that in a joint trial, where the same evidence or largely overlapping evidence is admissible against the principal and the alleged accessory on the issues of whether the principal committed the specific offence and whether the accessory was aware of the offence at the time the accessory assisted the principal to escape, there may be issues about consistency of verdicts. [7] There are conceptual differences between attempts and included offences, but they are not significant for the issues raised in this appeal. [8] The reading of ss. 660 and 662(1) as requiring that the whole offence not be proved is consistent with the Supreme Court’s description of an attempt offence being “in its very nature an incomplete substantive offence”: Dynar, at paras. 73-74. [9] In R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293 (“Sarrazin CA”), Doherty J.A., whose analysis was adopted by the Supreme Court, expressly declined to rule on whether attempted murder is an included offence to murder pursuant to s. 662(1) of the Criminal Code (at footnote 9 and paras. 29-30, 49, 50). [10] The respondent argues that s. 240 of the Criminal Code does not provide any specific means to commit accessory after the fact to murder. But this argument misses the fact that s. 240 is the penalty provision. The definition of the offence of being an accessory after the fact to murder is found in the combination of ss. 23 and 229 of the Criminal Code. [11] Section 661(1) provides: “Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence. [12] One would expect that this is a relatively rare occurrence. The annotation to this section of the Criminal Code provides one reported example, R. v. Doiron (1960), 129 C.C.C. 283 (B.C.C.A.).