Court of Appeal for Ontario

Citation: R. v. Khan, 2007 ONCA 779

Date: 2007-11-14

Docket: C42597 & C43705

Before: Moldaver, Simmons and MacFarland JJ.A.

Between: C42597

Her Majesty the Queen, Respondent

And

Muhammad Arsal Khan, Appellant

And Between: C43705

Her Majesty the Queen, Respondent

and

Kaneez Fatima, Appellant

Counsel: Richard Litkowski for the appellant Muhammad Arsal Khan Timothy E. Breen for the appellant Kaneez Fatima Brian McNeely for the respondent

Heard: October 31, 2007

On appeal from the convictions entered by Justice David Watt of the Superior Court of Justice, sitting with a jury, on April 22, 2004, and from the sentence imposed on Fatima by Justice Watt on June 14, 2004.

BY THE COURT:

[1] The appellants, Muhammad Arsal Khan and Kaneez Fatima, were jointly convicted of the murder of their five-year-old daughter following a trial before Watt J. sitting with a jury. They appeal their convictions for first degree murder and second degree murder, respectively. Fatima also seeks leave to appeal the fifteen-year minimum period of parole ineligibility imposed on her by the trial judge. The appellants raise several grounds of appeal, some of which are particular to each appellant and some of which overlap. We will address the grounds raised by Khan that are particular to him first before turning to the joint grounds of appeal, and finally to the grounds particular to Fatima.

I. Grounds Particular to Khan

[2] Khan raises three grounds of appeal that are particular to him, all of which relate to the finding that he had the requisite culpability for first degree murder. We would not give effect to any of these grounds and would accordingly dismiss Khan’s appeal.

(i) Admissibility of Post-Offence Conduct in Relation to Planning and Deliberation

[3] In our view, this was a case in which the jury could properly consider Khan's post-offence conduct in assessing whether Khan planned and deliberated the murder of his daughter.

[4] In concluding that the post-offence conduct was admissible for this purpose, we note that there was also evidence of pre-offence conduct that the jury could look to in deciding whether the murder was planned and deliberate. In particular, while not exhaustive, we note the following body of pre-offence evidence: (i) evidence of Khan’s animus towards his daughter, in particular his obsessive belief that she was not his child; (ii) evidence that from birth, Khan had no involvement with his daughter until she was foisted on him by village elders following his divorce; (iii) evidence that Khan ordered surgical instruments from Pakistan, from which it could be reasonably be inferred that he planned to use them to dismember the child following her death (three of those instruments were found to be missing from the set when the police searched Khan’s apartment); (iv) evidence from which the jury could infer Khan’s pre-selection of at least one of the burial sites; (v) evidence from which the jury could infer that Khan took steps to isolate the child once in Canada, including his failure to list her as an occupant on their apartment lease; and (vi) evidence that Khan was involved in physical abuse of the child predating her death.

[5] In view of this evidence of pre-planning, in our view, the trial judge made no error in leaving the post-offence conduct with the jury as evidence from which the jury could infer planning and deliberation. See R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 at paras. 14-15 (Ont. C.A.); R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538 at para. 11 (C.A.); R. v. Teske (2005), 2005 31847 (ON CA), 202 O.A.C. 239 at para. 85. On the facts of this case, the post-offence conduct was compelling and it supported an inference of a pre-existing plan to cover up the murder. This evidence included: (i) evidence that the body was dismembered virtually immediately after the killing; (ii) evidence that the body parts were buried in several locations within a short period after the murder; (iii) evidence that the apartment where the child was murdered, as well as a backpack used to carry body parts, were cleaned meticulously; (iv) evidence that some of the surgical instruments were disposed of; (v) evidence that school authorities were falsely advised that the child had returned to Pakistan; (vi) evidence that Khan and Fatima moved to a new apartment soon after the murder; and (vii) evidence that Khan changed his physical appearance shortly after he killed the child, as he knew he had been observed burying some of the body parts in a nearby park.

(ii) Unreasonable Verdict: First Degree Murder Based on Planning and Deliberation

[6] As for Khan’s contention that the verdict of first degree murder based on planning and deliberation is unreasonable, the evidence which we have recited above puts that submission to rest. In our view, there was ample evidence upon which the jury could find Khan guilty of first degree murder on the basis of planning and deliberation.

(iii) Unreasonable Verdict: First Degree Murder Based on Unlawful Confinement

[7] Finally, Khan maintains that the trial judge erred in instructing the jury that it could find first degree murder based on unlawful confinement. We would not give effect to this ground of appeal. In our view, there was some evidence capable of showing that Khan beat the child into unconsciousness, such that she could not have escaped even if she had wanted to, and that he then obtained a knife which he used to kill her by slitting her throat. While there may be other scenarios on the evidence capable of supporting an inference of unlawful confinement not inherent in the killing itself, the scenario we have identified is sufficient to dispose of this ground.

II. Joint Grounds

[8] With respect to the joint grounds of appeal, for the reasons that follow, we would not give effect to them.

(i) Instructions to the Jury on Reasonable Doubt

[9] The appellants submit that the trial judge erred in failing to instruct the jury that proof beyond a reasonable doubt is a standard of proof much closer to absolute certainty than to proof on a balance of probabilities, as noted by Iacobucci J. in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 at 544-45 (S.C.C.). This court has already dealt with and rejected that submission several times: see R. v. Samuels (2005), 2005 15700 (ON CA), 196 C.C.C. (3d) 403; R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60. In this case, the instructions given by the trial judge were clear and we see no realistic possibility that the jury would have misapprehended the standard of proof.

(ii) Failure to Grant the Appellants’ Request for a Judge Alone Trial

[10] The appellants submit that the trial judge erred in refusing to grant their request to circumscribe s. 473(1) of the Criminal Code, R.S.C. 1985, c. C-46, and have the case tried by a judge alone, absent the Crown’s consent, on the ground that they could not receive a fair trial as guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms if they were tried by a jury. In particular, the appellants submit that the trial judge applied too stringent a test in rejecting their request. The test applied by the trial judge was:

[T]hat there is a real and substantial risk that the effect of adverse pre-trial publicity, together with various features of the case against them, will be to leave prospective jurors so irreparably prejudiced that a fair trial with a jury will not be possible.

[11] The appellants submit that the correct test to be applied is one that is analogous to the test used in deciding whether a challenge for cause should be granted in any particular case. Specifically, the appellants contend that regardless of the position taken by the Crown, an accused should be entitled to trial by judge alone in any case where there exists a real possibility that the jury would be unable to render a fair and impartial verdict because of (i) bias or prejudice of a kind that would warrant a challenge for cause, or (ii) bias or prejudice occasioned by the nature of the charge and the evidence underlying it.

[12] On the facts of this case, the appellants contend that the prejudicial nature of the post-offence conduct was so severe as to preclude the jury’s rational assessment of the evidence. Combined with pre-trial publicity and potential religious and racial bias, they submit that there was a real possibility that they would not receive a fair trial if tried by a jury.

[13] We reject this submission. In s. 473(1) of the Criminal Code, Parliament has made its intention clear that a person charged with murder, the most serious crime in the Criminal Code, is to be tried by a court composed of a judge and jury absent the consent of both parties. While this provision can be overridden in order to ensure an accused’s right to a fair trial, it should not be interfered with lightly.

[14] In our view, this court’s decision in R. v. Henderson (2001), 2001 4540 (ON CA), 145 O.A.C. 150, is dispositive of this ground of appeal. Henderson makes it clear that an accused seeking a judge alone trial in these circumstances must, at a minimum, meet the test required for a change of venue – a test the appellants concede is more stringent than the one they propose. On our view of the record, the appellants fall well short of meeting that test. We are satisfied that their right to a fair trial was adequately protected through well-established procedures, including extensive screening of prospective jurors and challenges for cause.

[15] As Henderson provides a full answer to this ground of appeal, we find it unnecessary to finally determine the test that should be applied when an accused seeks to dispense with the mandatory requirement of trial by jury under s. 473(1). That said, we are inclined to the view that absent consent from the Crown, in order to avoid the requirement of trial by jury under s. 473(1), an accused must show that, on balance, the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient in the particular circumstances of his or her case.

[16] Whatever the precise test, it will not be an easy one to meet. That accords with our view that s. 473(1) should only be overridden in the clearest of cases. The test proposed by the appellants falls well short of the mark. If adopted, it would effectively eviscerate s. 473(1).

III. Grounds Particular to Fatima

(i) Conviction Appeal

[17] Fatima submits that the jury’s verdict of second degree murder is unreasonable. We disagree. In our view, there was ample evidence upon which the jury could find that she failed in her duty as a stepmother to protect the child from a vicious beating at the hands of Khan, which, at a minimum, she knew was likely to cause death, and that her omission was intentional and designed to enable Khan to murder the child.

[18] Further, we reject the submission that the trial judge erred in putting first degree murder before the jury because there was no evidence upon which the jury could find Fatima guilty of that offence. While the case against her in this regard was weak, there was a basis in the evidence for leaving this issue with the jury. Fatima was present when Khan beat the child and it was open to the jury to find that after inflicting the beating, Khan formulated a plan to kill the child and dispose of her remains, to Fatima’s knowledge. In those circumstances, there was an available inference that by failing to intercede, she became a party to Khan’s planned and deliberate murder. Accordingly, leaving first degree murder for the jury’s consideration occasioned no prejudice to Fatima.

[19] The appeal from conviction is therefore dismissed

(ii) Sentence Appeal

[20] We reject Fatima’s submission that the trial judge erred in fixing the period of parole ineligibility at fifteen years. The trial judge applied the correct principles and turned his mind to all of the relevant mitigating and aggravating factors. In our view, it is clear from his reasons that he understood the basis of Fatima’s liability and we specifically reject the submission that his decision was the product of any misapprehension or embellishment of the facts.

[21] This was a brutal crime committed on a helpless child. It involved a gross breach of trust. Apart from the horrific nature of the crime, Fatima’s post-offence conduct was particularly heinous. Standing alone, it warranted a substantial increase in the period of parole ineligibility. We note as well that of the ten jurors who made recommendations on parole ineligibility, four recommended fifteen years, four recommended twenty years and two recommended twenty-five years. While we agree with the trial judge’s observations concerning the limited information available to the jury in making these recommendations, in our view, the message from the jury was clear and it reflected the community’s sense of horror and the need to denounce crimes of this nature in the strongest of terms. While leave to appeal is granted, the sentence appeal is dismissed.

Signature: “M.J. Moldaver J.A.”

“Janet Simmons J.A.”

“J. MacFarland J.A.”

RELEASED: “MJM” November 14, 2007