Her Majesty the Queen v. Peer Mohammad Khairi, 2012 ONSC 6819

COURT FILE NO.: 09-50000744-0000

DATE: 2012120703

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PEER MOHAMMAD KHAIRI

Accused

Mr. Robert Kenny and Ms. Amanda Camara, for the Crown

Mr. Christopher Hicks and Mr. Anthony LaBar, for the Defendant

HEARD: November 17, 2012

REASONS FOR SENTENCE

R. Clark J.:

[1] On March 18, 2008, in the Etobicoke apartment they shared with their six children, the accused stabbed his wife five times in the torso and slit her throat so deeply as to nearly decapitate her. After five weeks of trial, the jury convicted the accused of second degree murder.

[2] The accused is before the court to be sentenced. I am bound by law to impose a sentence of life imprisonment. Pursuant to s. 745 of the Criminal Code, the only matter in which I have any discretion is the determination of how much of that sentence the offender must serve before being eligible for parole. On November 17, 2012, I heard submissions from the parties on this issue. What follows is my decision in that behalf and the reasons for that decision.

Principles of Sentencing

A. Section 745 Considerations

[3] Section 745 provides for a minimum of parole ineligibility of 10 years and a maximum of 25 years. While, quite obviously, all murders are serious, this "sliding scale" is meant to reflect the fact that “Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability”: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, at para. 29. Moreover, the language of s. 745 does not require that there be unusual circumstances to justify an increase from the statutory minimum: Shropshire, at para. 26.

[4] In making this determination, pursuant to s. 745.4 of the Code, I must consider (i) the character of the offender; (ii) the nature of the offence; (iii) the circumstances surrounding its commission; and (iv) any recommendations made by the jury pursuant to s. 745.2. In addition, I must consider the general principles of sentencing that would apply to any offender: R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263, (C.A.), at para. 9.

A. Section 745.4 Considerations

(i) Character of the Offender

[5] As noted above, in determining the appropriate period of ineligibility, I must consider the accused’s character. Generally speaking, when deciding upon an appropriate sentence for an offender, while the facts surrounding the offence are not always entirely clear, the court can, at a minimum, rely on a corpus of reliable biographical information from which to get a glimpse of the individual’s character. That is very difficult in this case for the following reasons.

[6] On the one hand, in their respective evidence, both Giti and Tamana Khairi portray their father as a man who, while not without his faults, was generally a gentle and loving father. Similarly, in a one page letter authored by the accused’s younger son, and signed by all of his siblings, the children draw a very positive portrait of a kind and caring father. They profess to love their father and to have “never had any complaints about [him].” They describe the accused as always wanting what was best for them and attempting to give them a better life, including bringing the family to Canada for “a better future and education.” They contend that they “need [their] father with [them] more than ever...” and express grave concern both about his health and about the prospect that something untoward might happen to him in prison.

[7] On the other hand, much of the rest of the evidence paints a very negative picture of the accused.

[8] I find that the accused is willing to say whatever he thinks best serves his interests, while, at the same time, being utterly indifferent to whether what he says is true. This extends not only to the accused’s account of circumstances surrounding the offence, but also to his evidence concerning his antecedents. I note, parenthetically, in this regard that even Dr. Bradford, a defence witness, concluded that where a purported fact was supported only by the accused’s self reporting there should be “a high index of suspicion.” In the result, except where his evidence (a) is confirmed by other evidence that I do accept or (b) appeals to logic and common sense, I believe very little of what the accused had to say.

[9] As for his life in Afghanistan, the accused stated in his evidence that he was relatively well to do while still living in his homeland. He said he had a car repair business with as many as 10 employees working for him. Inasmuch as he is illiterate, I find it difficult to accept that he could successfully operate a business with 10 employees. Moreover, he claimed that he needed the support of a brother to make ends meet. If he had been faring as well in business as he indicated, it strikes me as odd that he would have needed the financial support of a sibling. On the contrary, if the accused were as well off as he claimed, one would have thought that it would have been he who was supporting others in his family and not the other way around.

[10] Nor do I accept the accused’s evidence concerning how he came to leave Afghanistan.

[11] The accused says that because he was in the Afghan Army during a time of civil war he was seen by the insurgent Mujahedeen to be a collaborator. He says he received a letter purporting to be from the insurgents threatening to kill him and/or to destroy his family if he did not immediately leave Afghanistan. Yet, despite what he contends was this imminent threat of death, the accused acknowledged that he did not leave Afghanistan for 15 months after he allegedly received this letter. During this time he apparently took no precautions in terms of protecting or relocating his family. It strikes me as implausible that, if there had really been such a threat, the accused would tarry for more than a year in the face of such danger. He endeavoured to explain this by saying that he could not leave because he was in the Army and, thus, not free to do so. If that were so, I nonetheless find it implausible that all the while he says he was under this threat he took no steps to protect himself or his loved ones.

[12] Further, the accused’s account of getting passports to leave Afghanistan makes little sense to me. He claims that he got two passports, one for himself and his first wife and a second for the deceased and their children. While it is not uncommon for a person to have minor children on his or her passport, it strikes me as implausible that two adult persons, even spouses, could travel on the same passport.

[13] Like his evidence concerning his life in Afghanistan, the accused’s account of the time he spent in India also has many unlikely aspects to it.

[14] The accused claims that, after a difficult first year in India, he was thereafter reasonably prosperous. Yet, similar to what he claims was his situation in Afghanistan, the accused spoke of another brother supporting him and his family when they were living in India by bringing them food from his job as a cook.

[15] The accused claims that he worked in a hospital. He says that he worked principally as a chauffeur for the owner of the hospital, and on other occasions drove an ambulance belonging to the hospital.

[16] The accused also said that he repaired vehicles that belonged to the hospital. It was at this point that the accused indicated that he “was not accepting the money they were giving [him] but the guy was telling [him], No you have worked and you have to take a salary for that.” It is unclear to me whether, when he said that he refused the money he was being offered, the accused was speaking of just the mechanical repair duties he mentioned or whether he meant to say he refused a salary for any of his work at the hospital. In either event, it strikes me as highly unlikely that anyone who had endured the privation the accused contends he and his family suffered in their first year in India (which according to the accused, included the deceased being forced to beg in public) would refuse legitimate employment income.

[17] On still other occasions, according to the accused, he worked as an orderly in the same hospital. He said that one of his principal duties as an orderly was to check to see that the nurses and other staff were taking proper care of the patients. I do not accept his evidence in this behalf. In light of the fact that the accused has no medical training, he would have no way of knowing how any particular patient ought to be treated. Even assuming he had such knowledge, inasmuch as he is illiterate, he would have no way of reading a medical chart to discern whether a patient was receiving proper treatment or not.

[18] The accused further claims that the owner of the hospital was favourably disposed toward him because he had made a lot of money for the owner. Absent any explanation as to how he made money for the owner, the statement strikes me as a nothing more than an empty boast.

[19] The alleged friendly disposition of the owner toward the accused factors into the accused’s narrative in the following five ways.

[20] First, the accused contends that, after the death of his first wife, he was suffering from depression and was admitted as an inpatient into the hospital in which he worked. He said in cross-examination, that he was not charged any fee for the approximately three months he says he spent in the hospital. According to the accused, he was not charged because he “had helped them so much and brought them so much financial help that they did not charge [him].” Yet, in the accused’s very next answer, he said that his treatment at the hospital was free by virtue of an Indian regulation that requires hospitals to provide free medical care to their employees.

[21] Second, the accused alleges he was admitted to hospital for depression a second time, shortly after one of his brothers died. This time, as opposed to the private hospital where he was employed, he claims that he was admitted to a public hospital. It makes no sense to me that the accused would have gone to a public hospital, as he claims. I fail to understand why a man with a large family to support on only a modest wage would go to a hospital where he would be charged for treatment when, by his own account, treatment would have been free at the hospital where he says he was still employed at the time and where he purports to have enjoyed such friendly relations with his boss, the owner of the hospital.

[22] The accused said that one of the reasons he went to the public hospital as opposed to the private hospital where he worked was because he was in a very bad mental state and his wife and elder son took him there without asking him. This makes no sense to me because, since the family was of very modest means, surely, his wife and son would have known (a) that the cost for the accused’s treatment was apt to be considerable, even in a public hospital, and (b) that, by law, at least according to the accused’s account, he would have been treated for free at the hospital at which he was employed.

[23] Further, the accused’s account that he had no say in where he was taken is flatly at odds with his testimony, at another point, that he did not go to the hospital at which he worked because he did not wish to further impose upon the good will of his boss.

[24] Third, the accused claims that, as a consequence of his friendly relations with the owner of the hospital in which he worked, a number of doctors, who he claims treated his first wife when she was admitted to hospital shortly before she died, charged him vastly less than their normal fees for their services. He says that the total bill for his wife’s treatment was many thousands of rupees, but claimed that he paid only a small fraction of that amount because his boss interceded with the individual doctors to persuade them to reduce their fees.

[25] Fourth, the accused’s relationship with his boss factors into how he says he got to come to Canada. The accused indicated that one day he approached his boss and told him that he wanted to emigrate from India. He says his boss indicated that a patient of his was highly placed in the United Nations and, the next time he came to the hospital, he would ask him to help the accused. When asked in cross-examination why his boss would offer to do this, the accused reiterated his earlier assertion that his boss was well disposed to help him because he “had earned him a lot of income.”

[26] The accused then proceeded to give an elaborate account of meeting “the UN chief” in person and how, other than England, the man offered to send him to any country of his choosing. I do not accept that a functionary in the United Nations, no matter how well placed, would have the sort of influence necessary to be able to make such an offer.

[27] Fifth, when asked in cross-examination whether his relationship with his boss was “very positive”, the accused responded that “he was calling [him] as one of his relatives.” The accused then reiterated his earlier assertion that his boss treated him better than “[his] own parents treated [him].” The problem with that assertion is that the accused said in examination-in-chief that his father died when he was one year old. If that were true, obviously the accused would have no memory of his father’s treatment of him against which to compare the way in which his boss treated him.

[28] Turning to his life in Canada, the accused has never been employed and has had financial difficulties since his arrival. Those problems evidently worsened round about the start of his third year in Canada. This was apparently due to the reduction of a government allowance that the family had been receiving and, further, because some of his children, by then adults and working, no longer surrendered all their earnings to him.

[29] I find that Mr. Khairi is a person who expects that others will do his bidding and is intolerant of any departure from that paradigm.

[30] As an example, I find as a fact that the accused was unhappy with his children and their defiance of what he thought should be their manner of dress and deportment.

[31] In that regard, I reject the accused’s evidence in this trial that he was tolerant of his children adopting Canadian modes of dress and behaviour. Nor do I accept entirely what his daughters, Giti and Tamana, attested to in this regard. To my mind, much of their evidence on this subject was deliberately muted so as to present a picture of their father as being a more tolerant individual than he in fact was. For example, Giti Khairi said that her father thought that it was “okay” for her to stay overnight with her fiancé because they were engaged, yet she acknowledged that the accused argued with her about that very subject the night before he killed her mother.

[32] I find the witnesses from the Afghan Women's Organization, Neelab Subhani and Gulaly Nawabi, to be more reliable in this regard. They indicated that the accused was unhappy that, to his mind at least, his children did and dressed as they pleased.

[33] According to Ms. Nawabi, the accused also indicated that he was not satisfied with his life in Canada and was having a hard time adapting due to the fact that he could not speak English, he had no job, he was having problems with his wife, and his son was not going to school. Ms. Subhani also said that the accused had indicated that his wife had changed since coming to Canada where women had more rights and where she wanted equal treatment.

[34] I note that, despite a concerted effort on the part of various employees of the Afghan Women's Organization over the course of several years, to help the family settle in Canada and adjust to their new life, during his testimony in this trial, the accused spoke of this organization with apparent scorn, citing in particular that the organization was of no use because it did not provide the family with money.

[35] I find that the accused is quick to anger and has poor impulse control. I hasten to note that Dr. Bradford, whose evidence I will refer to extensively later in these reasons, made plain that difficulty with controlling one’s anger is not considered to be a mental illness, but, rather, a personality trait.

[36] I find that Mr. Khairi is a manipulative person.

[37] I note, in this regard, that Dr. Bradford concluded from his assessment of the accused that “there was some evidence of manipulation...”

[38] I am also strongly of the view that the accused’s so-called suicide attempts were not genuine, but, rather, feigned in an effort to draw attention to himself and to bend people to his will when other methods of persuasion failed. While still in India, Mr. Khairi contends that he tried to kill himself by throwing himself in front of trucks and trains. In Canada, his methods were less dramatic, involving, for the most part, taking overdoses of medications. Had Mr. Khairi seriously been trying to kill himself as many times as he contends, both in India and latterly in Canada, it simply beggars the imagination to suppose that he would not have succeeded or, at the very least, done himself some serious harm. Instead, there is no evidence that he ever did himself any lasting harm.

[39] One concrete example of the accused feigning suicide is found in his acknowledgement to Dr. Bradford that he had “attempted” suicide once in Canada in an effort to persuade the victim not to leave him.

[40] I find that Mr. Khairi is a person who has little, if any, insight into his own shortcomings. Rather, in his view, it seems, every problem with which he is confronted in life is always someone else’s fault. He is, in short, a profoundly self-pitying person.

(ii) Nature of the Offence

[41] The accused killed his wife of 35 years, the mother of his six children, in the family home. From the evidence I accept, I conclude that the victim was a good wife who worked tirelessly over many years in difficult circumstances to maintain her family to the best of her ability. I also conclude, at least during the time the family was in Canada, that she did so with little, if any, help from the accused. That said, this is a most egregious breach of the trust that lies at the heart of the marital bond.

(iii) Circumstances Surrounding the Commission of the Offence

[42] To say that this offence was brutal is to indulge in understatement. Having rejected utterly the accused’s account of his wife swearing at him and insulting him, as plainly the jury did, what set the accused off on this particular day is unclear. Whatever it was, the ferocity and the savagery of his attack on his wife are both clear and startling. As noted above, the accused stabbed his wife five times in the torso and cut her throat so deeply that he nearly decapitated her.

[43] I am also satisfied beyond any reasonable doubt that the victim did not die instantly. Rather, according to the evidence of the pathologist, Dr. Hunt, which I accept fully, it would have taken the victim some time to lose consciousness. All the while, she would have been gasping frantically for air, at the same time effectively choking on her own blood. According to Dr. Hunt, as distinct from how long it would have taken her to lose consciousness, it would have taken Ranjdida Khairi perhaps 15 minutes to actually die. Based on the bruising to the victim`s body and the lack of any indication of a struggle elsewhere in the apartment, I find as a fact that the accused held the victim down on the bed the whole time he was killing her. Doubtless, in those minutes, at least until she lost consciousness, Ranjdida Khairi would have known with an absolute certainty that she was going to die. To state the obvious, her last minutes of life must have been truly horrific.

(iv) Jury Recommendations

[44] Of the eleven jurors in this case, seven made no recommendation, three recommended 10 years and one recommended 25 years.

B. Other Considerations

[45] As well as the considerations mandated by s. 745, in imposing sentence for the offence of second degree murder, I must, as noted above, take into consideration “all of the objectives of sentencing...”: R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263, [1999] O.J. No. 1321 (C.A.), at para. 9.

(i) Range of Parole Ineligibility in Cases of Domestic Homicide

[46] Pursuant to s. 718.2(b), I am obliged to consider sentences imposed upon similarly situated offenders in similar circumstances.

(a) Cases Relied Upon By the Defence

[47] The defence relies on a number of cases of domestic murder in support of its position that the court should consider a range of 10 to 11 years of parole ineligibility. In all of them, save one in which a period of 11 years was imposed, the minimum period was imposed.

[48] In R. v. Allegretti, [1994] O.J. No. 172 (C.A.), the appellant stabbed his estranged wife to death in the course of an argument. While factually similar in that it involves a knife attack on a spouse, the case is of little utility in determining an appropriate period of ineligibility for two reasons. First, it predates the paradigm shift that Shropshire brought to the analysis of parole ineligibility in second degree murder cases. Second, the propriety of the minimum period of ineligibility was not dealt with on appeal. Likewise, in R. v. Curry, 2004 BCCA 144, [2004] B.C.J. No. 453, the issue was not considered on appeal.

[49] Counsel also relies on R. v. Pabani (1994), 1994 CanLII 8723 (ON CA), 17 O.R. (3d) 659, 89 C.C.C. (3d) 437 (C.A.), in which the court reduced the 12 year ineligibility period imposed at trial to the statutory minimum; that case, too, predates Shropshire and, thus, is of little assistance.

[50] I find that R. v. D.W.M., 2005 BCSC 1061, [2005] B.C.J. No. 1578, is distinguishable in that the Crown did not seek more than the statutory minimum and the court found that the accused had demonstrated remorse. As I will develop later in these reasons, I am of the view that there is no evidence of remorse in this case.

[51] In R. v. Muir, 1995 CanLII 805 (ON CA), [1995] O.J. No. 670, 80 O.A.C. 7 (C.A.), the court reduced the 12 year ineligibility period imposed at trial to the minimum. Defence counsel contends that, because the case was referred to in McKnight, it has survived Shropshire. Be that as it may, Muir is distinguishable from the case at bar in that the court found that the appellant had exhibited remorse.

[52] In R. v. Diep, 2005 ABQB 81, [2005] A.J. No. 106 the accused killed his estranged wife when she was about to leave him. The minimum period was imposed. I find the case to be distinguishable in the following four ways:

the level of violence was significantly less than in the case at bar (the deceased in Diep was stabbed once in the chest, as opposed to the five stab wounds to the torso and the near beheading of the deceased in this case);

Diep was profoundly depressed and, despite taking a prescription to ameliorate his condition, the medication was not working; (in this case, on the other hand, despite the efforts of Ms. Nawabi to get him some professional help, the accused simply did not bother to help himself by following up on the counseling Ms. Nawabi had arranged);

as I will develop below, I am not persuaded that the accused was as depressed as he would have had the jury understand; and

the trial judge in Diep found that the accused had expressed remorse, whereas in this case, as noted above, I find that there is no remorse.

[53] In R. v. D.W.M., 2005 BCSC 1061, [2005] B.C.J. No. 1578, the accused was found guilty of second degree murder in the death of his wife. Similarly to the case at bar, the accused made certain admissions that shortened the trial and agreed that his young daughter need not testify in order to spare her distress. On the other hand, that accused had many more mitigating factors in his favour than does Mr. Khairi.

[54] In R. v. Taylor, 2007 BCSC 309, [2007] B.C.J. No. 437, death was inflicted with one shot from a .308 hunting rifle. The case is distinguishable for the following reasons:

the deceased was killed instantly; (as such it represents a far cry from the violence in this case, particularly the protracted time that I find as a fact that it took the deceased to die);

the accused exhibited what Halfyard J. considered to be “genuine remorse” for his crime; and

Crown counsel did not seek ineligibility beyond the 10 year minimum.

[55] In R. v. Waraich, 2008 BCSC 919, [2008] B.C.J. No. 1309, the accused stabbed his wife a total of 39 times when she told him that she was leaving him. The case is similar to the case at bar in that the accused had no prior record and never denied that the killing was a culpable homicide. The case is distinguishable in that:

the jury made a unanimous recommendation of 10 years ineligibility;

having heard that recommendation, the Crown did not seek more than the minimum;

the trial judge considered that the 26 year old accused had very good prospects of rehabilitation; (in this case, by way of contrast, I find that the accused has very poor prospects of rehabilitation).

[56] I say that the accused has poor prospects of rehabilitation based on his manifest unwillingness to attempt in any meaningful way to adapt to Canadian life, as professed to Ms. Nawabi and as demonstrated by his failure to do anything other than sit in his apartment and brood over what he perceived to be his unhappy lot in Canada.

[57] In R. v. Spindler, [2001] O.J. No. 4899 (S.C.J.), the only case relied upon by defence counsel in which the period exceeded the statutory minimum, the accused was 61 years of age and had no criminal record. However, unlike the accused in this case, at least in relation to Mr. Khairi’s efforts in this country, Spindler had been a productive member of society for many years.

(b) Cases relied upon by the Crown

[58] For its part, the Crown relies on three cases: McKnight, supra, R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66, [1999] O.J. No. 4589 (C.A.), and R. v. Czibulka, 2011 ONCA 82, [2011] O.J. No. 372.

[59] In McKnight, the accused mounted an attack on his wife that lasted somewhere between 10 and 15 minutes. The accused initially grabbed the deceased around the neck and tried to choke her; he then set upon her with a serrated bread knife. She “suffered numerous injuries to her arms, hands, neck, shoulders and face. She had nine or more deep wounds on her right shoulder and over 50 defensive wounds on her hands and forearms”: McKnight, at para. 24. The 17-year ineligibility period imposed at trial was reduced to 14 years on appeal.

[60] The range of parole ineligibility of 12 to 15 years in cases of the brutal second degree murder of an unarmed wife or girlfriend approved in McKnight has been reaffirmed in subsequent decisions of the Court of Appeal: R. v. McLeod, 2003 CanLII 4393 (ON CA), [2003] O.J. No. 3923, 177 O.A.C. 385, at paras. 13 & 19; R. v. Bajrangie-Singh, 2003 CanLII 47384 (ON CA), [2003] O.J. No. 1166, 170 O.A.C. 99, at paras. 42 - 44; R. v. Sodhi (2003), 2003 CanLII 52179 (ON CA), 66 O.R. (3d) 641, 179 C.C.C. (3d) 60 (C.A.), at para. 127; R. v. Willis, 2007 ONCA 365, [2007] O.J. No. 1861, at paras. 28 - 32.

[61] In Wristen, the accused was convicted of the murder of his wife. There were numerous aggravating factors not present in the instant case, including (i) that the appellant had earlier been convicted of assaulting his wife and was on probation for that offence at the time he killed her, (ii) that he tried to conceal the death of his wife, (iii) that he endeavoured to conscript his daughter in the cover-up, and (iv) that he would not reveal the location of his wife’s body so as to permit her relatives to give her a decent burial. The court upheld the 17-year period of ineligibility imposed at trial.

[62] More recently, in Czibulka, the court upheld a 15-year period of ineligibility imposed on the appellant for the murder of his wife. In that case, the appellant beat his wife to death. She sustained 25 rib fractures, a broken breast bone and a lacerated diaphragm. Aggravating factors in that case included (i) the severe and protracted beating of the deceased, (ii) “unspeakable indifference to her suffering after the beating”, (iii) a deliberate demeaning of her character after her death, and (iv) the accused’s attempt to mislead the investigation into her death.

[63] Speaking for the court at paragraph 67, Laskin J.A. rejected the notion relied on by the defence in that case that McKnight had effectively set the range for domestic homicides in Ontario at 12 to 15 years. In that regard, he specifically noted that, shortly after its decision in McKnight, the court in Wristen upheld a period of parole ineligibility of 17 years. Laskin J.A. then went on to distinguish McKnight on the basis of what he referred to as “significant mitigating circumstances” in that case that warranted reducing the period of parole ineligibility.

(c) Other Cases

[64] In R. v. Neumann, 2010 BCCA 446, [2010] B.C.J. No. 2000 (C.A.) the Court of Appeal upheld a parole ineligibility of 12 years for a 63 year old appellant who had been charged with first degree murder, but convicted of second degree murder. As in the case at bar, the defence of provocation was advanced and rejected. The jury had no recommendation respecting parole ineligibility. In that case, the accused shot his wife five times. Two shots struck her in the head, killing her instantly.

[65] In R. v. Martel, 2011 ABCA 225, [2011] A.J. No. 802 (C.A.), the appellant stabbed his common law wife and recorded her last moments with his cell phone. He had a prior record for spousal assault and for uttering threats. The Court allowed a Crown appeal, substituting for the 12-year period of ineligibility imposed after trial a period of 15 years. It is interesting to note that Bielby J.A. observed that “[c]ounsel [had] located no case from [the Court of Appeal for Alberta] issued after the introduction of 718.2(a) (ii) of the Criminal Code in which a parole ineligibility period of less than 15 years has been imposed in relation to the second degree murder of a spouse”: Martel, at para. 12.

[66] In R. v. Gakmakge, 2011 QCCS 1962, [2011] Q.J. No. 4315, the trial judge rejected a joint submission of 12 years of ineligibility for an accused who killed his wife, imposing 14 years instead. Citing s. 718.2 (a) (ii) of the Code, the trial judge held that, despite the fact that the accused had no previous criminal record, because the offence resulted from a domestic dispute it warranted a more severe sentence. At paragraph 46, the trial judge stated, “[d]omestic violence is unacceptable and must be denounced.”

[67] In R. v. Angelis, 2011 ONSC 462, [2011] O.J. No. 608 (S.C.J.), Smith J. imposed a 12- year period of ineligibility on a 41 year old accused who suffocated his wife in front of his two children. In that case, the jury had unanimously recommended 10 years of ineligibility.

[68] In R. v. Pasqualino, 2008 ONCA 554, [2008] O.J. No. 2737, the appellant had previously both threatened and physically abused his spouse. Similar to this case, the victim had informed the appellant’s brother two days before she was killed that she was intending to leave the appellant. Laforme J.A., speaking for the court, held at paragraph 78 that the trial judge in that case had “accurately identified the sentence range for a second-degree murder in the domestic context by an offender with no criminal record as encompassing a period of parole ineligibility of 10-14 years.” In that case, the court upheld the 13 year parole ineligibility period imposed at trial.

(ii) Rehabilitation

[69] In McKnight, at paragraph 39, Laskin J.A. agreed with the sentencing judge’s reliance on the following principle, expressed by Morden A.C.J.O. speaking for the Court of Appeal in R. v. A. (T.S.), 1995 CanLII 1570 (ON CA), [1995] O.J. No. 535 (C.A.), at para. 30; leave to appeal to S.C.C., refused November 16, 1995:

... I think that under the "character of the offender" factor in s. 744 [now s. 745.4] of the Code, the rehabilitation potential of the offender cannot be excluded from consideration. I recognize, however, that in the setting of a sentence of life imprisonment with a minimum period of parole ineligibility of ten years, this factor cannot have the same scope that it would have in other sentencing situations.

Laskin J.A. then went on to endorse what he characterized as “the common sense notion” that “the statutory 10 year minimum period of parole ineligibility for second-degree murder limits the weight that can be accorded to the appellant's prospects of rehabilitation”: McKnight, at para. 39.

Deterrence and Denunciation

[70] In Shropshire, at para. 23, the court clearly indicated that ‘parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. As such, it must be concerned with deterrence, whether general or specific.’

[71] Likewise, denunciation is to be considered when deciding ineligibility: R. v. Purdy, 2012 BCCA 272, [2012] B.C.J. No. 1245, at para. 13, citing Shropshire.

[72] In this case, in my view, both deterrence and denunciation require a period of ineligibility exceeding the range suggested by counsel for the accused.

Mitigating Factors

[73] There are few mitigating factors that can be marshalled on behalf of the accused.

(i) First Offender

[74] I am satisfied that the accused is a first offender and, as such, he is entitled to some leniency.

(ii) Age of the Accused

[75] The accused relies on his age as a mitigating factor.

[76] To begin, it is not contested that the accused’s official age, as stated in his passport, is 65 years, but the accused asserts that he is, in fact, 75 years of age. I do not accept the accused’s claim.

[77] The discrepancy came about, the accused asserts, because of a deception perpetrated at the instance of his family when he was a young man. According to his account, his older brother registered him as being younger than he in fact was in order to delay his induction into the Afghan Army of the day. The object of this exercise, according to the accused, was to ensure that he would not enter the army until he was more mature and, thus, would avoid being subjected to sexual abuse by other soldiers, which, according to him, was then commonplace in the Afghan military.

[78] This account makes no sense to me for two reasons.

[79] First, if there were any truth to the proposition that young men were routinely subjected to sexual abuse in the Afghan Army at the time the accused would have been of age to do his compulsory service, it might make some sense for his brother to adjust the accused’s age downward by a matter of a couple of years.

[80] On the other hand, to adjust the accused’s age by 10 years would be preposterous. It is conceivable that a young man who was, in fact, 18 years of age might look two or three years younger than his actual age, but there is no way the same young man could pass for a boy of eight years of age. By the same token, if a young man’s age had been falsely stated as being 10 years younger than he in fact was, the deception would obviously come to light when he was finally inducted into the army at the age of 28. In summary, I simply do not believe the accused when he says that he is in fact 10 years older than the age on his documents.

[81] Second, the accused effectively resiled in cross-examination from his assertion in chief that he was 75 when he indicated that his age had only been misstated by seven years. He indicated that this false registration was done when he was 12 years old at which time his brother gave his age as five.

[82] Even the age of 65 entitles an accused to some leniency: R. v. McNamara et al. (No. 2), 1981 CanLII 3389 (ON CA), [1981] O.J. No 3260, 56 C.C.C. (2d) 516 (C.A.), at para. 7. That said, I note that a period of ineligibility of 15 years was upheld on appeal against the appellant in Czibulka who was 64 years of age.

(iii) No Prior Violence

[83] The relationship between the accused and the deceased was clearly a turbulent one, in which verbal arguments were frequent. These arguments included the prolific use of offensive language by both parties, although the language used by the offender appears to have been considerably more offensive. I reject the evidence of the accused concerning the nature of the insults he says his wife routinely made to him. On this issue, I prefer the evidence of the daughter, Giti, who said her mother would call the accused a “bastard” and a “coward”, whereas her father routinely referred to his wife by such terms as “bitch” and “whore”. Moreover, these confrontations occurred not infrequently in front of the children.

(iv) Psychiatric Evidence

[84] The court heard a great deal about this offender’s psychiatric condition. As I have indicated respecting the accused’s general antecedents, for the reasons that follow, I am not inclined to place much weight on the accused’s self reported psychiatric difficulties. In turn, that means that, while I am prepared to consider the accused’s condition as a mitigating factor, I do so only to a limited degree.

[85] An obvious example of what I consider to be the accused’s penchant for deceit and dissimulation in relation to his psychiatric condition can be found in Dr. Bradford’s evidence concerning one of the several interviews he conducted with the accused. When, at one point in the interview, he told the accused that he did not think that he had a mental illness, Dr. Bradford said the accused got immediately to his feet and walked around for several minutes banging his head with his hands. Dr. Bradford concluded, and I agree, that this was an attempt by the offender, albeit a very clumsy and transparent one, to convince the doctor that he was in fact mentally ill.

[86] Another obvious example can be found in the results of the TOMM (Test of Memory Malingering), a psychological instrument designed, as the name would suggest, to detect malingering in relation to memory. Dr. Bradford interpreted the results of that test as indicating that the accused was malingering amnesia in relation to the events surrounding his killing of his wife.

[87] Notwithstanding my misgivings surrounding the accused’s various accounts of his mental state, I find as a fact that the accused does suffer from certain psychological and psychiatric difficulties.

[88] That said, Dr. Bradford acknowledged that his assessment of the offender was compromised, to some degree at least, by virtue of the fact that it took place approximately four years after the murder. The doctor also acknowledged that the assessment was further weakened by the fact that the source for the vast majority of the information upon which he relied for his opinions was the offender himself. As noted above, the doctor acknowledged in cross-examination that there was a concern respecting the veracity of the accused’s account of events underpinning his diagnoses.

(a) Major Depression

[89] I conclude that the accused suffers to some degree from depression. I am not convinced, however, that his depression is anywhere near as profound as Dr. Bradford diagnosed. I say that because I reject much of the informational base upon which the doctor relied for his diagnosis.

[90] In particular, I reject the accused’s account of having been hospitalized for depression on two occasions while still living in India. More particularly, I reject the accused’s evidence that he received electro-convulsive therapy for depression. I say that for the following reasons.

[91] First, despite the accused having had more than four years to acquire them, throughout most of which time he has been represented by counsel, no records were ever forthcoming from India to support his claim of having been hospitalized. While both Giti and Tamana Khairi spoke of some odd behaviour on the accused’s part while the family was still living in India, neither ever mentioned the accused being hospitalized in that country.

[92] Second, as noted above, the accused worked in a hospital in India, including some time during which he was an orderly. Thus, despite the fact that he is illiterate, he could easily have been aware of the fact that the electro-convulsive treatment he described to the doctor is used to treat depression.

[93] Third, the accused claimed that he received the electro-convulsive treatments while he was an inpatient for three months on the first of what he contended were two hospitalizations. The accused says that he got a treatment every day during one ten-day period of those three months. The problem is, however, that his evidence is in sharp contrast with the evidence of Dr. Bradford, which I accept on this point. Dr. Bradford indicated that where electro-convulsive therapy is used to treat depression typically such treatments are administered, not every day, as the accused suggested, but, rather, “three times a week with – usually between six and twelve treatments...”

[94] Dr. Bradford relied, in part, for his diagnosis of depression on the accused’s claim that he made numerous suicide attempts while still living in India. He apparently told the doctor, as he told this court, that he tried to throw himself in front of trucks and trains. Yet, as noted above, his efforts appear to have left him totally unscathed. His daughters never spoke of him trying to commit suicide in India. I conclude that he never attempted suicide while living in India and his false reports of having made such attempts were simply an effort on his part to convince the doctor and, in turn, this court that he has suffered from depression for many years.

[95] As for what the accused contends were his six suicide attempts in this country, again, apart from the automobile accident he was involved in approximately three weeks before the murder, the accused suffered no injury from any of these alleged attempts. The most that he apparently suffered was having his stomach pumped when he had apparently taken an overdose of some combination of his own and his wife’s medication, and, on another occasion, a sore neck from ramming his head into a wall.

[96] Dr. Bradford acknowledged that, while suicidal ideation is often associated with depression, people have been known to feign suicide attempts in order to get attention or to manipulate other persons to do, or refrain from doing, certain things. The doctor further acknowledged that he understood from speaking with the accused that the accused had done precisely that. That is to say, the accused admitted that one of his “attempts” had been an effort to convince his wife, who at the time was planning to leave him, not to do so.

[97] As for the automobile accident, for the following reasons I reject entirely the accused’s assertion that this was a deliberate suicide attempt.

[98] The accused gave an elaborate account both to Dr. Bradford and, subsequently, the court of how he deliberately tried to kill himself on the 401 Highway by suddenly, and without signaling, swerving his vehicle across several lanes of traffic. The difficulty with his account is that he told the Homicide officers, a mere three weeks later, that the collision occurred when his engine malfunctioned. More specifically, as opposed to his evidence that he did not signal, he told Det/Sgts. Barsky and Code that he had activated his emergency flashers and tried to pull his vehicle safely to the shoulder of the highway.

(b) Adjustment Disorder

[99] I also accept the doctor’s diagnosis that the accused may have some form of adjustment disorder. Whatever psychiatric label, if any, one chooses to attach to his situation, it is obvious that, once in Canada, the accused did not cope well in his new environment. I accept, on the one hand, that his language difficulties made his adjustment to life in Canada more difficult than it is for many other immigrants.

[100] On the other hand, I conclude that the accused made no real effort to adjust to life in this country. For example, despite arrangements being made for him to have English language training, the accused made what I conclude was, at best, only a half-hearted effort over a very short space of time to achieve some proficiency in English. Similarly, in terms of his psychological problems, despite Ms. Nawabi having arranged to get him some professional counseling for what in her lay opinion was his depression, the accused apparently could not be bothered to follow up.

[101] In R. v. Oigg, 2006 MBQB 68, [2006] M.J. No. 166; leave to appeal refused, 2007 MBCA 34; [2007] S.C.C.A. No. 254, the accused was found guilty of the second degree murder of his common law spouse. He was given a parole ineligibility period of 14 years. At paragraph 21, Beard J. held that the refusal of the accused in that case to attend for court ordered counseling was an aggravating factor on sentence.

(c) Post Traumatic Stress Disorder

[102] I do not, however, for the following reasons, accept Dr. Bradford’s diagnosis that the accused suffers from Post Traumatic Stress Disorder (“PTSD”).

[103] First, the doctor considered the triggering event of the PTSD to be the Mujahedeen rocket that the accused reported having struck his home in Afghanistan, killing his mother and badly maiming his first wife. The accused claims to have been home when the rocket hit his house, yet, despite the fact that the explosion was devastating enough to claim his mother’s life and injure his first wife gravely, he would have the court accept that he was totally unscathed. The doctor indicated that this sort of incident could trigger PTSD. The problem with accepting this account, however, is that the accused gave an entirely different account to the Homicide officers of how his first wife lost her leg. As opposed to a rocket attack in Afghanistan, he was very clear that her leg was badly injured in an automobile collision in India and had to be amputated.

[104] Further on this point, I do not accept the accused’s evidence that, during the time leading up to the death of his wife, he frequently awoke in the night screaming. This was another factor that the doctor said led him to conclude that the accused was suffering PTSD. However, even though Giti said that this happened, the evidence of Tamana was that the most she remembered was her father crying from time to time during the night.

[105] In the result on this issue, I reject the doctor’s PTSD diagnosis entirely. I find as a fact that neither the triggering event, as reported by the accused, nor the latter day symptoms of recurrence upon which the doctor relied, actually happened.

[106] Speaking of PTSD, Dr. Bradford opined that “these types of disorders, which affect mood and affect impulse control, including anger control, could have an impact depending on what the circumstances were.” The doctor did not postulate that that was the case here, however, because “it depends what happened during the incident itself, which [the doctor was] unclear on.”

[107] Having rejected the doctor’s diagnosis of PTSD, it follows that I reject his conjecture that the PTSD could have been a factor in causing the offender to lose his self control on March 18, 2008.

(d) Summary of Psychiatric Evidence

[108] Dr. Bradford opined that Mr. Khairi was “generally...either reluctant or defensive to discuss anything to do with the incident.” For his part, the offender acknowledged as much during his evidence in this trial. He told the doctor, and later this court, that this was because he only able to discuss these events with his lawyer present. I reject that explanation for the reason that, notwithstanding the same protestation to the Homicide detectives on March 19, 2008, the accused nonetheless gave Det/Sgt. Code a reasonably full account of what he said took place. Similarly, on at least two occasions in hospital in Ottawa, the accused gave Dr. Gulati an account of the events surrounding his wife’s death. I note that, respecting the accounts he gave in hospital, there were significant differences between the accounts themselves and further differences between those accounts and the account he gave the detectives four years earlier.

[109] I find that the accused was guarded, not because he felt he could only discuss the issues with his counsel present, but, rather, because, on all occasions when he discussed the details of killing his wife, he was being less than candid with the persons to whom he told his various accounts.

[110] As alluded to above, Dr. Bradford also found that Mr. Khairi had deliberately malingered amnesia when he completed one of the psychological tests that the doctor caused to be administered to the offender.

[111] In McKnight, at paragraph 106, Laskin J.A. held that the “the sentencing judge was also entitled to consider that the appellant had deceived, or at least withheld information from, his psychiatrist.” For the foregoing reasons, I make the same finding here and discount the offender’s evidence of his psychological problems accordingly.

[112] Dr. Bradford found that, despite the various maladies he diagnosed, the offender did not have any cognitive impairment. He said that the offender had “some difficulties with sleeping, nightmares, irritability and some mood issues, but he wasn’t really impaired with them.”

[113] Dr. Bradford indicated that unconsciousness from the motor vehicle accident the accused had been in could have had an impact on the accused’s mental functioning, but only if the period of unconsciousness had been protracted. Based on the evidence, including the results of the tests Dr. Bradford ordered, which showed no cognitive impairment, and the accused’s acknowledgement in his evidence that he was only briefly unconscious, I accept that he was rendered unconscious in the automobile accident, but find as a fact that the period of unconsciousness was not long enough to have caused any permanent damage that would have affected his mental functioning on March 18, 2008.

Aggravating Factors

(i) General Principles

[114] In R. v. Cerra, 2004 BCCA 594, 192 C.C.C. (3d) 78, at para. 17, Donald J.A. held that "parole eligibility greater than 10 years is justified when there is some particularly aggravating feature." This case has the following aggravating features.

(ii) Abuse of A Spouse

[115] The accused abused his spouse; pursuant to the provisions of s. 718.2 (a) (ii) of the Criminal Code, that is an aggravating factor. With reference to s. 718.2(a) (ii) of the Code, in R. v. Lenius, 2007 SKCA 65, 299 Sask. R. 139, at para. 15, the court held that:

[A]n increase in the period of parole ineligibility in domestic violence circumstances is usually justifiable in that a spousal assault constitutes a breach of a position of trust and is an abuse of power and control with domestic homicide being the most extreme form of domestic violence.

[116] Respecting parole ineligibility in the context of an intimate relationship, see also R. v. McMaster (1998), 1998 CanLII 4118 (ON CA), 37 O.R. (3d) 543, 122 C.C.C. (3d) 371 (C.A.) and R. v. Barry, [1993] O.J. No. 3955; 22 W.C.B. (2d) 73 (C.A.).

(iii) Victim was Vulnerable

[117] The victim was a vulnerable person. Although the accused is himself a rather small man, by comparison, the victim, only 86 pounds at the time of her death, was diminutive in relation to him. Furthermore, the victim was unwell at the time of her death, suffering from both epilepsy and diabetes.

(iv) Use of Multiple Weapons

[118] The accused used not one, but two separate weapons against his unarmed spouse. I find as a fact that these factors rendered her ability to defend herself virtually nil.

(v) Demeaning the Character and Memory of the Deceased

[119] I gather from Dr. Bradford’s evidence that, during the period when the accused was being assessed, he dwelt to some considerable extent in interviews with the doctor on what he characterized as his wife’s low moral character. More particularly, he told the doctor that his wife was “a loose woman”.

[120] Furthermore, the accused testified in this trial that, in the weeks leading up to the homicide, his wife routinely swore at him and insulted him. Worse yet, according to the accused, she often did this in the presence of their children, thereby humiliating him. On the day in question, he claimed that she insulted him grievously and then attacked him with a knife. The accused said these things in order to advance the defence of provocation. It is entirely clear, however, from their questions and their verdict that the jury rejected both the accused’s accounts to the doctor about his wife’s moral shortcomings and his evidence concerning her behaviour. This amounts, then, to the accused deliberately demeaning his wife's character and memory; that is an aggravating factor: Czibulka, at para. 72.

(vi) Impact on the Accused’s Children

[121] The impact of the accused’s act on his children is also an aggravating factor.

[122] The accused’s daughter, Giti, testified in this trial, but could not finish her evidence because she became very distraught. She was excused part way through her evidence and her evidence from the preliminary inquiry was read into evidence.

[123] Another daughter, Tamana, was so distraught upon first being told that her father had killed her mother that she made several immediate and concerted attempts to harm herself, including grabbing a pair of scissors and attempting to stab herself in the abdomen and trying to take an officer’s service pistol, presumably in order to shoot herself. These efforts resulted in the police arresting her under the Mental Health Act. She was held in a psychiatric facility for nearly a week in the aftermath of her mother’s death.

[124] More recently, Tamana’s evidence from the 2009 preliminary inquiry had to be read into evidence in this trial because she is still under the care of a psychiatrist, who advised the court by letter that Tamana is still so psychically frail that to testify might cause her harm.

[125] By way of evidence of victim impact, as noted above, the court received a letter in which the children ask this court for leniency for their father in terms of the ineligibility period. While I commend the authors of the letter for their ability to forgive the accused, the letter is singular in the extent to which it focuses entirely on the accused. Apart from one reference to the children not having attended because it would have upset them to see photographs of their mother, the letter is devoid of any mention of their mother.

(vii) Attitude of The Accused

[126] To begin, I recognize as a general principle that it is not to be held against an accused as an aggravating factor on sentence that he chose to plead not guilty or that he has not exhibited remorse: R. v. Champion, 2009 ONCA 184, [2009] O.J. No. 829; R. v. Valentini, 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251. Usually the only consequence of a not guilty plea in terms of sentence is that it disentitles an accused to the usual credit that he might have received if he had pleaded guilty, thereby exhibiting remorse: R. v. Pavich (2000), 2000 CanLII 16971 (ON CA), 138 O.A.C. 349, [2000] O.J. No. 4209; R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 60 C.C.C. (2d) 200 (C.A.).

[127] On the other hand, in R. v. Giroux, 2006 CanLII 10736 (ON CA), [2006] O.J. No. 1375, 207 C.C.C. (3d) 512, at paragraph 68, Blair J.A., speaking for the court, held:

It is accepted that lack of remorse is not ordinarily an aggravating factor in sentencing and that courts ought to be very careful in treating it as such: R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at para. 82. The trial judge did refer in her reasons for sentence to her sense that the appellant did not feel any remorse for his acts. However, I do not read her as having done so with a view to treating this lack of remorse as an aggravating factor. Rather, I read her comments as indicating that this factor, taken together with his demeanour at trial and with what the trial judge considered to be his unreliable and completely "invented" evidence, simply showed a cavalier attitude towards the crime in question and the heightened consequences of that crime in the Cornwall area. These are factors that

she was entitled to take into account in considering whether to order a conditional sentence.

[128] There is one aspect of the accused’s conduct after he killed his wife that I feel fits within this exception to the general prohibition against considering absence of remorse in determining sentence, namely, the accused’s attitude when interviewed by the investigators on the morning of March 19, 2008. Although a minor factor relative to the others I have mentioned, and not something upon which I am inclined to place any significant weight, I feel I would be remiss if I did not mention this issue.

[129] The accused complained that the first officers to respond to his 911 call were, in his view, too slow in arriving and, had they been more prompt, they might have saved his wife’s life. I find as a fact that the victim’s injuries were so grievous that, without any doubt, she was dead well before even the first officer arrived on scene, such that there is no objective reality to the accused’s complaint. That said, the statement reveals a colossal self-absorption on the part of the accused, to the utter exclusion of any comprehension whatsoever on his part of the enormity of his criminal act.

Sentence

[130] As I am obliged to do, I hereby sentence the accused to imprisonment for life. On the basis of the foregoing analysis, I order that the offender not be eligible for parole until he has served 15 years of that sentence.

Ancillary Orders

(i) Section 109: Weapons Prohibition Order

[131] The Crown seeks, and the offender does not resist, an order pursuant to s. 109 of the Criminal Code. Accordingly, I hereby order that the accused be prohibited from possessing any of the items or substances articulated in subparagraph 2(a) of that section, commencing today and ending 10 years from the date of his release from prison, and that he be prohibited from possessing any of the things mentioned in subparagraph 2(b) of the section, from this day forward, for the rest of his life.

(ii) Section 487.051(1): DNA Order

[132] The Crown also seeks, and the offender does not resist, an order pursuant to s. 487.051 (1) of the Criminal Code. Inasmuch as second degree murder is a primary designated offence, I hereby authorize the authorities to take from the offender such samples of bodily substances as are reasonably required for the purposes of forensic DNA analysis.

R. CLARK J.

Released: December 3, 2012