CITATION: R. v. Ibrahem, 2017 ONSC 1616

COURT FILE NO.: 13735/14

DATE: 2017-03-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FERAIDON IBRAHEM Defendant

N. Trbojevic, for the Crown

F. Davoudi & S. Caramanna, for the Defendant

HEARD: March 6, 2017

Justice B.A. Glass

Sentence for Second Degree Murder

[1] On December 21, 2016, Mr. Ibrahem was convicted of second degree murder of his wife, Nasira Fazli. He had killed her by stabbing on July 19, 2013 at their residence. He had been tried for first degree murder.

[2] The couple had encountered arguments during that day and for some time prior to the day of the death of Nasira Fazli.

[3] They had married in Afghanistan in 2011 after Nasira Fazli had travelled there with her mother. An arranged marriage was organized.

[4] Nasira Fazli was born in Afghanistan but lived in Canada from age 5 years and was 31 years old when she died.

[5] Feraidon Ibrahem was born and raised in Afghanistan where he was a doctor.

[6] After the marriage, the couple travelled to Dubai for a honeymoon after which Nasira Fazli returned to Canada and sponsored her husband to come to Canada.

[7] The couple had one child, a son, who was born in Canada.

[8] Mr. Ibrahem arrived in Canada in early April 2013. It appeared that the couple experienced discord within the month of April.

[9] Much of the friction between the couple centred on Nasira Fazli being an independent woman who was not prepared to be less than independent. She had arranged a prenuptial agreement for Mr. Ibrahem to sign before they were married. She was to retain her assets which included a home in Ontario. If the marriage were not to last, what was hers remained hers and vice versa.

[10] Mr. Ibrahem wrote in journals and diaries expressing frustrations with his wife, with women in Canada having too much power and tending to fight with their husbands. He wanted to end his life.

[11] On July 19th, Mr. Ibrahem stabbed his wife to death striking major organs such as the heart, kidney, liver, lung, intestines and through the torso into the spinal column. These wounds were fatal separately.

[12] Mr. Ibrahem called his brother in Kabul, Afghanistan to advise him that he had killed his wife and wondered if he should kill himself. His brother recommended that he call a cousin near Toronto. That cousin encouraged Mr. Ibrahem to call 911. The Defendant knew about calling 911 for emergencies through his attendance at school here.

[13] After the better part of an hour, he called 911 to state that he had killed his wife.

[14] Police were at the residence within minutes and arrested him.

[15] The investigating police service arranged for the help of an interpreter; however, it is apparent from watching a video-recorded interview and statement that Mr. Ibrahem communicated extensively in English. In fact, at the booking desk the arresting officer told the booking Sergeant that Mr. Ibrahem had been in Canada for 2 months to which immediately Mr. Ibrahem corrected the officer in English that he had been here for 3 months.

[16] During the trial, Mr. Ibrahem admitted that he was the cause of the death of his wife; however, he claimed that his wife was lunging for a knife on a bathroom vanity saying she was going to kill him. At that moment, Mr. Ibrahem testified that he got the knife first, that he remembered much of what happened, but that just as the stabbing of Nasira Fazli occurred a black veil came over his eyes and he did not remember actually doing the stabbing. This black out type of experience had occurred one previous occasion in medical school in Afghanistan when he struck another student on the nose. He claimed that he did not intend to kill his wife nor did he plan and deliberate killing his wife.

[17] It is evident that the jury did not believe his testimony. He had claimed to suffer a mental disorder in the form of a major depressive disorder and complex trauma as he advanced a defence of not being criminally responsible. Dr. Gojer had testified pointing out that if the jury believed the evidence of Mr. Ibrahem, then not criminally responsible might be available.

[18] The Crown theory is that this was to be a murder suicide but that the Defendant just did not complete his own suicide. He tried a month later in jail when he cut his throat.

[19] The verdict of the jury indicates that the jurors were satisfied that Mr. Ibrahem did intend to kill his wife or meant to cause her bodily harm knowing he was likely to cause her death and was reckless whether or not death occurred.

Victim Impact Statements

[20] The mother of the victim, Shahla Fazli, has filed a Victim Impact Statement in which she describes how the loss of her daughter has had a far-reaching impact upon her life and that of the family. She experiences depression and anxiety. Her husband has left the home and her son is not at the family home. Shahla cares for her grandson who has struggled considerably since his mother was killed. Her statement refers to her grandson being diagnosed with autism since Nasira Fazli died; however, there is no medical report to confirm that condition.

[21] Shahla has explained how much of an emotional and financial impact the loss of Nasira Fazli has had on the family. Nasira was the financial and emotional foundation for the whole family. With her death came a major change in the financial foundation of the family. They now are living in subsidized housing. The emotional force of the family was Nasira who is gone.

[22] Sharipa Fazli is a sister who testified at the trial. She is experiencing depression now. The deceased was a mainstay for the whole family prior to her marriage and while married to the Defendant. Nasira was a financial and personal support for the whole family. She experiences depression and sees a psychiatrist.

[23] Sharina Fazli is a sister who also suffers depression since her sister died. She too sees a psychiatrist.

[24] Homera Fazli is a sister still trying to come to grips with the violent loss of a sister. The impact on the whole family consistently overwhelms them.

[25] Bashir Fazli is a brother operating at a loss with the death of Nasira Fazli and the fallout of stress and loss upon all family members.

[26] One can well imagine that the family will have much difficulty coming to grips with this family tragedy.

[27] There has been an expression of worry that Mr. Ibrahem might cause family members here in Canada and in Afghanistan physical harm because he went to jail after killing Nasira Fazli.

[28] The Defence submits that many comments from family members should not be accepted unless evidence in support of some reflections were to be advanced. An example might be the statement that the child of Nasira Fazli and Mr. Ibrahem has been diagnosed with autism since his mother’s death. There is no medical report to support this statement by Shahla Fazli.

[29] I might observe that regardless of there not being a medical report about Yasin, the Victim Impact Statement from the grandmother clearly describes a very young child struggling to cope with the loss of his mother.

[30] I interpret the Victim Impact Statements of family members as basically complying with the requirements for statements demonstrating how these tragic events have affected them. There is an additional community Victim Impact Statement completed by Sharipa Fazli also enlarging on the community being a victim.

[31] Sometimes, victims of crime become confused about what a Victim Impact Statement is. When they do so, they try to become advocates for punishment of persons who have been through a criminal trial process. I do not read the Fazli statements as being improper. Simply, they provide a broader understanding of how a tragic life-ending event for a family member has affected them.

[32] In a nutshell, with an event such as a homicide, there is no winner. Rather, everyone is suffering a loss.

Mitigating Circumstances

[33] There does not appear to be any circumstance that alleviates a sentence for Mr. Ibrahem. Reading the journals and diaries of Mr. Ibrahem enlightens one to understand that coming to Canada was a dramatic change in life for the Defendant. The clash of mindsets was evident soon after he arrived. Mr. Ibrahem was not a happy person with basically no job, not being able to work as a doctor here, expecting his wife to take directions from him but finding that she was an independent woman who was not prepared to do so. One might conclude that this marriage had an insurmountable uphill challenge from the time of the Defendant’s arrival.

[34] Mr. Ibrahem provided at trial evidence of depression and anxiety; however, he appears to have encountered depression more so after being held in custody following the death of his wife. He is not in a similar situation to the husband in R. v. McKnight, 1999 3717 (ON CA), [1999] O.J. No. 1321 in which the accused man was noted to have been influenced by depression and schizoid personality considerably at the time he killed his wife.

Aggravating Factors

[35] Mr. Ibrahem has no criminal record. He is an educated man who was a qualified doctor in his home country. His frustration with living in Canada became evident soon after he arrived in the spring of 2013. The way of life in Canada is different from that in Afghanistan. These circumstances might lead a sentencing court to have some compassion for the Defendant who might be perceived as a person lost in a new living environment. However, different customs and ways of life in Canada do not give way to other customs in other countries. In other words, the laws of Canada do not change simply because a person was raised in another country where women might not have been on the same equal footing that exists in Canada. The Ontario Court of Appeal in R. v. H.E. 2015 ONCA 531, [2015] O.J. No. 3733.

[36] Being educated as a doctor at his home country leads one to anticipate that he would have some broader understanding of the meaning of marrying and moving to another country in which the way of living would be different significantly.

[37] His journals and diaries reflect his confusion and frustration once he arrived here. He did not move from the matrimonial home and did complain considerably about life in Canada. In fairness to Mr. Ibrahem, one must take into account that he did not have independent resources and that he would be likely to feel uncomfortable to see his marriage not continue to exist.

[38] The victim was the wife of the Defendant and she was in a vulnerable situation. She was vulnerable emotionally and psychologically and was under the care of Dr. Direnfeld for assistance with depression. She told the doctor that she was concerned that Mr. Ibrahem had in effect used her to come to Canada and to bring his family here from Afghanistan.

[39] Mr. Ibrahem demonstrated that he was verbally, emotionally and psychologically abusive to Nasira Fazli. The contents of his journals and diaries outline his anger and intent to challenge his wife. He knew she was a patient dealing with depression.

[40] Stabbing his wife in all of her vital organs was not random by Mr. Ibrahem, but rather was an indication of intended brutal action.

The Jury Parole Ineligibility Recommendation

[41] Eleven jurors recommended that Mr. Ibrahem serve 25 years of a life sentence before being able to apply for parole and one made no recommendation. A jury is asked for recommendations because they have heard the evidence and determined what offence has been proven beyond a reasonable doubt.

[42] In this trial, Mr. Ibrahem advanced a not-criminally responsible defence which was not accepted by the jury. That left the jury to determine whether this was a planned and deliberate murder taking into account the journal and diary entries and the recorded meeting between Mr. Ibrahem and his wife and her family members. The jury in finding that the Defendant committed second degree murder concluded that there was an intention to kill or to cause bodily harm that was likely to kill his wife and he was reckless whether or not death followed. The Defendant is a doctor who had more knowledge and skill regarding the human body than the average person would have. The stab wounds entered all the major organs of Nasira Fazli. In other words, the stab wounds were not superficial but rather were major insertions of the knife blade into the torso of Ms. Fazli.

[43] Mr. Ibrahem had testified that he did not remember each stab wound because a black veil came over his eyes when the stabbing occurred. He accepted his responsibility for causing the death of his wife by stabbing. One might conclude as improbable that several random stabbing assaults upon another human being just by chance hit the heart, the lungs, the liver, the kidney, the intestines and the spinal column. The decision of the jury in finding Mr. Ibrahem guilty of second degree murder reflects that although planning and deliberation was not proven, the foundation for second degree murder was established so that there was intent to inflict the wounds and a black veil coming over his eyes at the time of the stab wounds was not accepted by the jury.

[44] The infliction of these wounds was intense and there were many so that a sentencing court faces the consideration that they reflect a cruel intention to make sure Nasira Fazli was dead when all activities ended.

[45] The jury’s recommendations are a source of guidance from the community members who have participated in the whole trial and have a greater awareness of the actions of Mr. Ibrahem.

The Position of the Crown

[46] The Crown seeks a term of 15 – 18 years imprisonment without parole eligibility.

[47] The Crown points out that there is no legitimate remorse demonstrated by Mr. Ibrahem. A simple observation is that he just does not like being in custody following his wife’s death. Any mental health issues of significance might be considered as more evident after the death of Nasira Fazli and that death was caused by the Defendant.

[48] The tenor of the Crown submissions is that Mr. Ibrahem’s position advances an explanation that he is the poor stranded person in a foreign country who was overwhelmed by the customs in this strange country. The law in Canada applies to all persons here in Canada. A person does not have the opportunity to come to Canada and impose his customs upon this country simply because he did activities differently in Afghanistan. Women in Canada are persons who have the full benefit of equality before the law. One is not entitled to be physically abusive to women, to persons with physical or mental challenges, to persons of all skin colours or sexual preferences. All are in the same equal footing and that includes Mr. Ibrahem.

[49] If a person breaches the law here, as did Mr. Ibrahem, then he is not to be in any more lenient position that anyone else.

[50] With Mr. Ibrahem, he demonstrated a more harsh approach to his wife and ended her life brutally. His case calls for a court to impose a life sentence with a greater than minimal period of time in custody before being able to apply for release on parole.

The Position of the Defence

[51] The Defence seeks a term of 10 – 13 years imprisonment without parole eligibility based on the lack of any criminal record, being a responsible doctor from another country who was stranded in Canada as a country with very different customs between women and men than his home country of Afghanistan. His son is about five years old and he would like to keep some relationship with him as the child grows. If he were not eligible to apply for parole for many years, he would have no relationship with his son.

[52] The Defence concludes that I should not make conclusions about what the jury found in the evidence unless I find them proven beyond a reasonable doubt. For example, did the knife used to kill Nasira Fazli come from the kitchen or the counter in the bathroom. Mr. Davoudi is submitting that I should not make such a finding. That is one of several possible factors to consider.

[53] Mr. Ibrahem spoke at the sentence hearing saying he is sorry that his wife is dead, that he does not want his son to be persecuted for what his father did, and that he wants the court to help him receive a pardon soon so that he can return to his homeland.

The Foundations for Sentence for Second Degree Murder

[54] The character of Mr. Ibrahem, the nature of the offence and the circumstances surrounding the murder of Nasira Fazli are all taken into account in the sentencing process.

[55] The Criminal Code of Canada provides in section 718 the bases for sentence hearings.

[56] Some of the Victim Impact Statements express fear of Mr. Ibrahem after he completes his sentence both from the point of view of their individual safety and for members of their family still living in Afghanistan should he seek revenge.

[57] He is a person without means so that any consideration of restitution is unlikely. Mitigating circumstances are not present, but aggravating factors are. Although one might feel sorry for the Defendant living in a country other than his homeland and being unhappy with the state of the marital relationship with his wife, such a consideration does not carry weight to lighten the load of an appropriate sentence. Sentencing courts focus on rehabilitation, denunciation and deterrence from such conduct again.

[58] Inflicting several life-threatening wounds to another human being should be discouraged both for the Defendant and for people in general in Canada. Not only should such activity be the subject of disapproval, but also it should be pointed out as conduct to avoid.

[59] I interpret the recommendations of the jury as reflecting these considerations of sentencing when they returned with eleven members stating that the life sentence should not be interfered with until 25 years had been served. There is an orphaned child, a family deprived of the life of a family member, and a likely call on Canadian society to assist in raising the child of the Defendant and the deceased. The character of Mr. Ibrahem is one of a self-centred person who was not apprehensive of ending his wife’s life. He had the opportunity to avoid the confrontation. Mr. Ibrahem could have left the home if he was not happy. He had a relative in Ontario, one whom he called the night he killed his wife. Being a doctor, he could not help but know that the wounds he inflicted were life-threatening. Yet, he failed to provide any medical assistance to his dying wife until he would have known she was not alive.

[60] The defence presented to the jury was that he was not criminally responsible. Evidence was presented through Dr. Gojer regarding depressive disorder and automatism if the jury accepted the self-reported mental health evidence that was provided by Mr. Ibrahem. The verdict demonstrates that the jury did not believe that evidence. Nor did the jury find any room for a rolled-up charge that might have led to a consideration of non-intended killing. In effect, the verdict of the jury is a clear indicator that Mr. Ibrahem acted with intention and that this offence was closer to planning and deliberation without being found to be so.

[61] Mr. Ibrahem has been in custody since July 19, 2013. The life sentence is in progress from that date when one considers the time for parole ineligibility.

[62] I am persuaded that the time for parole ineligibility should be considerably greater than the minimum of 10 years. He portrayed himself as a person who should be given great consideration, but he took very little responsibility for the events. He ended the life of his wife in a harsh manner and left his son without parents to raise him. Nasira Fazli was fatally injured and it did not appear that he sought relief for her. He took time to telephone his brother in Afghanistan and then another relative in Canada before calling 911. His defence was not-criminally responsible when seeking no criminal liability. If the jury did not accept that verdict, he asked that he be considered for no greater criminal liability than manslaughter because he did not intend to kill his wife. The jury did not accept that defence position.

[63] Violently ending the life of the primary caregiving parent when the child of the relationship is less than five years of age and then taking the position that he should only be minimally accountable when the jury did not accept that proposition is a reflection that Mr. Ibrahem does not care for anyone but himself. One must consider that other members of society in Canada understand that taking a life in this manner is a terrible act of violence that carries with it a significant price. Section 718 of the Criminal Code addresses denunciation, deterrence, rehabilitation and section 718.2 calls for consideration of abuse of his spouse as an aggravating factor.

[64] The sentence should reflect more than 15 years prior to parole eligibility because of the above factors that outline a major foundation for a significant sentence in custody.

Conclusion

[65] The sentence will be life without parole for a term of 17 years.

[66] There will be an order prohibiting communication with Yasin Koshan Wafa (his son), Shahla Fazli (the victim’s mother), Aghashah Fazli ( the victim’s father), and the victim’s siblings who are Davoud Fazli,, Hasham Fazli, Bashir Fazli, Sharipa Fazli, Sharina Fazli, and Homera Fazli. This order is made pursuant to section 743.21 of the Criminal Code.

[67] There shall be an order pursuant to section 109 of the Criminal Code for life prohibiting the Defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance.

[68] There shall be a DNA order pursuant to section 487.051 of the Criminal Code, this being a primary designated offence.

Note: This decision in writing is the official Reasons for Sentence and takes precedence over the oral reasons read into the record in court.

Justice B.A. Glass

Released: March 10, 2017