



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khairi, 2015 ONCA 279

DATE: 20150422

DOCKET: C56660

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Khairi

Appellant

Richard Litkowski, for the appellant

Christine Tier, for the respondent

Heard: April 15, 2015

On appeal from the conviction entered on November 11,
    2012 and the sentence imposed on December 7, 2012 by Justice Robert A. Clark of
    the Superior Court of Justice, sitting with a jury.

By the Court:

iNTRODUCTION

[1]

The appellant was convicted of second degree murder for the stabbing and
    killing of his wife, Ranjdida Khairi.

[2]

The victim was killed in the family apartment where she lived with the
    appellant and their six children. There was evidence that the appellant was
    abusive and that his wife had told him that she was going to leave him and take
    the children with her.

[3]

The appellant admitted the killing. He contended that he lacked the
    intent for murder due to mental health issues. Alternatively, he claimed that
    he stabbed his wife in the heat of passion, caused by her allegedly provocative
    words and conduct.

[4]

The circumstances of the killing were horrific. The fatal wound sliced
    through the victims neck, cutting through her neck muscles and voice box and nicking
    her spine. The appellant also stabbed her five times in the torso. Two knives
    were used in the attack. The medical evidence indicated that the flow of blood
    into the victims airway would have impaired her breathing, but she may have
    been conscious for up to five minutes before death.

[5]

The appellant was sentenced to life imprisonment, with a minimum period
    of 15 years of parole ineligibility. He appeals his conviction and seeks leave
    to appeal his sentence.

ANALYSIS

[6]

The grounds of appeal of conviction are as follows:

(a)

the trial
    judge erred in failing to grant a mistrial after the Crowns inflammatory
    opening and by failing to give any ameliorating instruction after the Crowns inappropriate
    closing;

(b)

the trial
    judge erred in failing to give a
W.D.
instruction in response to a
    question from the jury;

(c)

the trial
    judge misstated the evidence of one of the expert witnesses; and

(d)

the trial judge
    failed to properly relate the evidence to the statutory defence of provocation.

(a) The Crown opening and closing

[7]

We agree with the submission of counsel for the appellant that the opening
    statement of the Crown (who was not counsel on appeal) was improper. As he
    points out, the facts would quite understandably evoke a sense of revulsion in
    the jury and restraint was required. The opening was inflammatory,
    argumentative and lengthy.

[8]

Immediately after the Crowns opening, defence counsel indicated that he
    intended to bring a motion for a mistrial. The trial judge said he had
    anticipated that motion and invited counsel to make submissions. The
    appellants counsel said he needed time to prepare the motion and asked the
    trial judge to recess over the long weekend before hearing submissions.

[9]

The mistrial motion was heard the following Tuesday. At the end of the
    submissions, the trial judge dismissed the motion, concluding that the
    prejudice could be addressed by a jury instruction. He proceeded to instruct
    the jury that the Crowns remarks exceeded the scope of a proper opening
    statement. He told them that the facts of the case were not proven until they
    found them so, the opening statement was not the proper place for argument and
    they should disregard argument. He also cautioned the jury that they were required
    to consider the evidence dispassionately and should not permit the nature of
    the wounds or the Crowns references to them to inflame or prejudice them
    against the appellant.

[10]

It
    is disturbing that after repeated references by this court to the responsibility
    of Crown counsel to display restraint and impartiality in addressing the jury,
    instances of rhetorical over-zealousness continue to occur: see
R. v. A.T
.
,
2015 ONCA 65, at paras. 26-31;
R. v. Mallory
, 2007 ONCA 46,
220 O.A.C. 239,
at paras. 338-340.

[11]

Having
    said that, it is well settled that a trial judge has the discretion to
    determine whether to grant a mistrial: see
R. v. A.G.,
2015 ONCA 159,
    at para. 51;
Mallory
, at para. 343. The appellant has identified no
    error that would warrant our intervention and we dismiss this ground of appeal.
    We would add that any prejudice that might have been caused by the opening was
    properly addressed through the trial judges instruction.

[12]

Nor
    do we give weight to the submission that the Crown closing was improper or
    required a jury instruction. The appellants principal submission on this issue
    is that the Crown invited the jury to speculate on the manner of the killing  namely,
    that the appellant first cut her throat, causing massive blood loss and then, to
    hasten her death, held her down and proceeded to inflict five wounds to her
    torso with a different knife.

[13]

It
    is accepted that the closing may contain some measure of argument and advocacy:
R. v. Boudreau
, 2012 ONCA 830,
104 W.C.B. (2d) 862,
    at para. 15
;
Mallory
, at paras. 339-40. The sequence of
    stabbings was relevant to the appellants intent and the Crowns closing tied
    the evidence to this issue. The Crowns theory was supported by the evidence
    and it was entitled to put that theory to the evidence. We see no error.

(b) The jury question and
W.D.

[14]

The
    appellant submits that the trial judge erred by not giving a
W.D.
instruction in response to one of several questions asked by the jury. In
    answering the jurys second question, the trial judge, at the request of the
    appellant, included a
W.D.
instruction. The charge itself had included
    a
W.D.
instruction.

[15]

The
    third and fourth questions were related and bore some similarity to the second
    question. Essentially, the jury asked whether, if they rejected certain
    portions of the appellants evidence concerning a sequence of events, they were
    nevertheless entitled to accept other parts of his evidence.

[16]

In
    his submissions concerning the proposed answer to these questions, the
    appellants counsel asked for another brief recital of the
W.D.
instruction.

[17]

The
    trial judge rejected this request, observing that the jurys question was
    simply about the fact-finding process and not about the burden of proof. He
    pointed out that he had given the
W.D.
instruction two hours earlier
    in response to the jurys second question. He proceeded to answer the third and
    fourth jury questions by re-instructing the jury on their entitlement to
    believe none, some or all of the evidence of a witness and told them that
    whether they accepted some parts of the evidence and rejected other parts was a
    matter of logic and common sense. He elaborated with examples, told them they
    must examine all the evidence and cautioned that they must not engage in
    conjecture and speculation.

[18]

We
    do not accept the appellants submission on this issue. The trial judges
    charge explained the presumption of innocence, the burden of proof, the
    requirement of proof beyond a reasonable doubt and the practical operation of
    the principles in
W.D.
He repeated the
W.D.
instruction in
    his answer the second jury question.

[19]

What
    the jury needed by way of answer to the third and fourth questions, and what
    the trial judge gave them, was a clear repetition and elaboration of his
    instruction that they were entitled to accept none, some or all of the
    appellants evidence and that they were to apply logic and their own common
    sense. The jurys questions, considered in context, did not call for a
    repetition of the
W.D.
instruction. We agree with the respondent that
    such an instruction might have confused the jury, rather than enlightening
    them. We therefore reject this ground of appeal.

(c) The expert evidence

[20]

The
    appellant submits that the trial judge failed to give a fair, accurate and
    balanced summary of the evidence of Dr. John Bradford, a psychiatrist called by
    the defence.

[21]

Dr.
    Bradford interviewed the appellant some four years after the killing. He diagnosed
    him as having post-traumatic stress disorder and recurrent major depression.
    Depending on the circumstances, this could have made him irritable and more
    prone to losing his temper. Dr. Bradford expressed the opinion, however, that the
    appellant would have known what he was doing at the time and could appreciate
    whether it was right or wrong.

[22]

The
    appellant was subjected to a number of tests including tests measuring his
    cognitive functioning and tests to determine whether he might be malingering.

[23]

Dr.
    Bradford testified that the appellant performed in the low range in some of the
    tests, not because he had cognitive difficulties but because he made a poor
    effort on the test. The appellant was tested to determine whether he was
    malingering amnesia and the test showed that he was.

[24]

The
    appellant asserts that the trial judges references to malingering amnesia
    undermined his defence based on diminished capacity. He notes that Dr. Bradford
    also testified that the appellants memory difficulties were real and were
    linked to post-traumatic stress disorder and depression.

[25]

In
    our view, the trial judge painted a fair picture of Dr. Bradfords evidence. He
    told the jury that Dr. Bradford diagnosed the appellant as having several
    recognized mental disorders and told them they could rely on his opinions,
    provided they found a factual basis for them. Much of Dr. Bradfords opinion
    was based on the appellants recounting of his personal and medical history.
    The jury had the benefit of hearing from the appellant himself and would have been
    able to compare their assessment of his evidence with the information he
    recounted to Dr. Bradford. The references to the appellants malingering did
    not misstate or distort the evidence.

[26]

We
    therefore reject this ground of appeal.

(d) Provocation

[27]

The
    trial judge gave a rolled up charge, referring to the evidence concerning the
    appellants mental health, marital issues and the allegedly provocative words
    and conduct of the victim on the issue of intent for murder. He also gave a
    lengthy instruction on provocation. At the conclusion of that instruction, he
    told the jury that as he had already referred to the main parts of the evidence
    concerning the appellants mental condition and his relationship with his wife,
    he was not going to repeat that evidence, but told them to consider it in
    relation to the partial defence of provocation.

[28]

In
    response to a defence objection at the end of the charge, the judge gave a
    further instruction, telling the jury that they were required to consider the
    appellants evidence concerning the allegedly provocative actions and words of
    his wife in relation to the issues of intent and the partial defence of
    provocation. He also told them that those actions and words, standing alone,
    could be a sufficient basis for them to have a reasonable doubt about whether
    he had the intent for murder.

[29]

In
    our view, the trial judge was not required to repeat his review of the evidence
    relating to provocation: see
R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    para. 14
.
Having heard the evidence reviewed once, the jury did not
    have to hear it again.

[30]

The
    appellant also says the trial judge failed to explain that conduct that fails
    the ordinary person test on provocation in s. 232 of the
Criminal Code
must
    nevertheless be considered in determining whether he had the necessary intent
    for murder. He says that in the absence of such an instruction, the jury may
    have thought that the evidence was only relevant to intent if it met the
    specialized meaning of s. 232  see
R. v. Bouchard
,
2013
    ONCA 791,
305 C.C.C. (3d) 240, at paras. 54-69, affd. 2014 SCC 64,
    [2014] 3 S.C.R. 283.

[31]

In
    our view,
Bouchard
is inapplicable. In that case, the majority found
    that the trial judge had told the jury that the statutory definition of
    provocation was applicable to assessing the impact of the deceaseds allegedly
    provocative conduct on the appellants
mens rea
. It was not made
    clear to the jury that the victims acts and words and the appellants response
    to them were relevant to the appellants state of mind, even if they did not
    meet the statutory requirements of provocation.

[32]

We
    agree with the respondent that this charge, both in structure and content, did
    not display a similar error.

(e) The sentence appeal

[33]

The
    Crown had asked for a 17-year period of parole ineligibility. The defence had
    asked for a period of ten to eleven years, based on the appellants mental
    health problems, his age and the absence of any record of violence.

[34]

The
    appellant submits that in arriving at a 15-year period of parole ineligibility
    the trial judge underemphasized mitigating factors and overemphasized
    aggravating factors.

[35]

The
    trial judge gave lengthy reasons for sentence. He rejected most of the
    appellants evidence unless it was independently corroborated.

[36]

We
    accept the appellants submission that the trial judge erred in stating that
    the jurys verdict was necessarily a rejection of the appellants evidence
    concerning the victims provocative words and actions. The jury may have
    accepted his evidence, but concluded that the conduct did not reduce his intent
    or rise to the level of provocation. We are not satisfied, however, that this
    error had a material effect on the sentence.

[37]

The
    trial judge identified relevant mitigating and aggravating factors. The
    mitigating factors included:

·

the fact that the appellant was a first offender;

·

the appellants age, which he found was 65, rejecting the
    appellants evidence that he was 75;

·

the absence of prior violence, although the spousal relationship
    was turbulent and frequently involved verbal abuse by both parties; and

·

to a limited degree, the appellants psychological and
    psychiatric difficulties.

[38]

He
    also identified aggravating factors, including:

·

the fact that the victim was the appellants spouse;

·

the vulnerability of the victim;

·

the use of multiple weapons (the two knives);

·

the appellants attempts to demean the character and memory of
    the deceased;

·

the impact of the killing on his children; and

·

the appellants lack of appreciation of the enormity of his
    actions.

[39]

The
    trial judges balancing of these factors attracts deference:
R. v. Nasogaluak
,
2010 SCC 6, [2010] 1 S.C.R. 206,
at paras. 44-46. The
    appellant has identified no error in principle; nor is the sentence clearly
    unreasonable, demonstrably unfit or outside the appropriate range: see
R.
    v. Oliver
(2005),
194 O.A.C. 284
(C.A.), at para.
    49. There is no basis on which to interfere with the trial judges exercise of
    discretion.

disposition

[40]

For
    these reasons, the conviction appeal is dismissed. While we grant leave to
    appeal the sentence, the sentence appeal is dismissed.

G.R. Strathy C.J.O.

D. Doherty J.A.

E.E. Gillese J.A.

Released: April 22, 2015


