R. v. Khan, 2019 ONSC 1086

Court Details

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

SAID-ARTIOM SHAHIDUR KHAN

BEFORE THE HONOURABLE JUSTICE J. DI LUCA on JANUARY 11, 2019 at NEWMARKET, Ontario

APPEARANCES:

R. SCOTT Counsel for the Crown E. ASHUROV Counsel for Said-Artiom Khan

Table of Contents

REASONS FOR JUDGMENT PAGE 3 Legend [sic] – indicates preceding word has been reproduced verbatim and is not a transcription error (ph) – Indicates preceding word has been spelled phonetically

Reasons for Judgment

DI LUCA J. (Orally)

[1] This is a very tragic case. On September 28, 2016, Mr. Khan took a knife and stabbed his wife, Oleksandra Khan in the head. The stabbing occurred unexpectedly and was not related to any apparent fight or dispute between the parties. Miraculously, Ms. Khan survived the stabbing but suffered significant and permanent injuries including partial blindness in one eye and paralysis on her left side.

[2] The tragedy in this case is compounded by the fact that by all accounts, Mr. and Ms. Khan were happily married at the time of the incident. They lived in a beautiful house and had two happy and healthy children. Mr. Khan was employed in the IT industry and Ms. Khan was a stay at home mother. Mr. Khan was described as a good and loyal husband who supported his wife who had come to Canada from the Ukraine a few years prior. Mr. Khan was also described as a good and caring father. There were no prior incidents of violence, aggression or abuse in the home. I accept that this was a family bound by love and caring. I also accept that Mr. Khan is horrified by what happened.

[3] Turning to the alleged offences, Mr. Khan stands charged with attempt murder, aggravated assault and assault with a weapon. Following the completion of the evidence the Crown invited an acquittal on the charge of attempt murder based on the absence of evidence establishing the intent required by R. v. Ancio. In my view, this concession was fair and appropriate based on the evidence heard at trial.

[4] In terms of the remaining two charges, Mr. Khan admitted that he stabbed his wife in the head as alleged. The issue to be determined was whether he was suffering from a disease of the mind that rendered him either incapable of appreciating the nature and quality of his acts or unable to understand that his acts were morally wrong.

[5] The defence’s main position is that Mr. Khan was operating under a disease of the mind that rendered him not criminally responsible at the time of the offences. In the alternative, the defence argues that if Mr. Khan was not suffering from a disease of the mind, he was in automatic state that rendered his conduct involuntary. On this issue, the defence indicated that it would rely on prior judicial findings of unconstitutionality in relation to s. 33.1 of the Criminal Code should that section apply to deny the defence advanced.

[6] In terms of evidence, I heard from the complainant and two first responders. I also received transcripts of discovery evidence for other first responders and police witnesses who dealt with Mr. Khan on the night in question.

[7] Mr. Khan testified, as did Dr. Klassen, a respected and well-known forensic psychiatrist. Certain medical records and a toxicology report were also filed. The Crown did not call a doctor in reply, though reports prepared by court appointed assessors were reviewed by and commented on by Dr. Klassen.

[8] At the conclusion of the evidence, the Crown took the position that the defence had established the NCR defence on a balance of probabilities. Again, on the basis of the evidence before me, the Crown’s position was fair and reasonable and in keeping with the best traditions of the Crown’s role and office.

[9] In view of the relatively unique or rare nature of this type of case, I indicated that I would provide some brief reasons explaining why I agreed with the parties that at the time of the offences, Mr. Khan was suffering from a disease of the mind as that term has been developed in the case law and also that the disease of the mind likely rendered him unable to understand that what he was doing was morally wrong.

I will start with a brief review of the facts.

[10] Both Ms. and Mr. Khan testified that in the time frame immediately preceding the stabbing, Mr. Khan was under a significant amount of work and life stress. He felt increasingly pressured by the demands of his job and the demands of a business he also operating with partners. While he was doing well financially, it came at a cost in terms of his health.

[11] Mr. Khan had a modest medical history of stomach problems for which he sought medical attention and treatment. He had some history of sleep difficulties but no significant history of psychiatric troubles. Historically, Mr. Khan was a social drinker who would generally consume alcohol on weekends, albeit not in quantities that impacted his daily life.

[12] During the summer of 2016, the family visited the Ukraine and while there Mr. Khan was prescribed some antihistamines to assist with his sleep. He also had been experiencing some health concerns relating to his stomach and his heart. Following his return from the Ukraine, the stress and work pressures ramped up.

[13] Concerns over the housing market prompted Mr. and Ms. Khan to purchase an expensive home out of fear that they would be priced out of the market. This caused a significant amount of stress as the family had to figure out how to finance the purchase of the new home and sell the current home. Work pressures continued to build and Mr. Khan was having difficulty with one of his partners. Around this time, Mr. and Ms. Khan also discussed having a third child.

[14] For a period of two weeks prior to the incident, Mr. Khan stopped going in to his work place and stayed at home. While he could work remotely from home, he was having significant difficulty even facing the prospect of doing so. As he described, even the thought of lifting the lid of his laptop to respond to emails had become a huge essentially overwhelming task that seemingly took “hours”.

[15] Around this time, Mr. Khan was having significant trouble falling asleep. Mr. Khan was also consuming alcohol on a daily basis. The alcohol consisted of wine, beer and the occasional cognac. In terms of quantities, there is some lack of clarity in the evidence as to how much was being consumed. At a minimum it was several drinks per day. Mr. Khan indicated his best recollection was that he was consuming 4 to 5 beers per day plus a glass or two of wine and maybe some cognac. In my view, it was likely a fair bit more than that.

[16] Ms. Khan became concerned that Mr. Khan was drinking every day and not going to work. She no doubt observed that he had hit a significant low point in his life and was not coping very well. The drinking bothered her to the point that she decided to talk to him about. During the ensuing discussions she urged Mr. Khan to stop drinking and get back to work in order to try to get his life back to normal.

[17] Mr. Khan heeded her advice and stopped drinking. He was unable, however, to get back to work. Over the next few days he suffered a significant bout of insomnia. He simply could not fall asleep and he grew increasingly tense and agitated. On the day prior to the stabbing, Mr. Khan was with his wife and children. They went to an appointment with a car mechanic and went to a restaurant to pick up a meal. Ms. Khan drove as she was hoping that Mr. Khan might nod off while she drove. On a couple of occasions that day, Mr. Khan appeared to be hearing voices. For example, he claimed to hear the children in a location where they were not present and claimed to hear her speaking to him from the backyard. She was concerned about what appeared to her to be auditory hallucinations and she checked Google to see if she could find some answers.

[18] That evening, Ms. Khan grew further concerned when she heard distressed breathing coming from Mr. Khan. She was afraid that he might be having a heart attack and called 9-1-1 at approximately 10 p.m. An ambulance crew arrived and conducted a brief examination of Mr. Khan. As a result of some tests administered at the home, the ambulance crew was satisfied that Mr. Khan was not having a heart attack. They nonetheless suggested that he go to the hospital and undergo further examination. He declined the suggestion.

[19] After the ambulance crew left, Mr. Khan was still having difficulty falling asleep. By this time he had been awake for approximately three days. In an effort to try to fall asleep he smoked a small amount of marijuana mixed with tobacco. It had no effect. He also likely consumed at least one glass of wine. Lastly, he consumed some sleeping pills that he had obtained in the Ukraine.

[20] According to Ms. Khan, Mr. Khan was agitated because she had called 9-1-1. When they were speaking in the bedroom, she suggested that perhaps it would be best if they went to the hospital as had been suggested by the ambulance crew. Mr. Khan left the bedroom and returned moments later brandishing a knife. He stabbed Ms. Khan in the head while she was lying in bed. He then sat on the end of the bed and she took the knife from him, grabbed her phone and ran out of the house. According to Ms. Khan, Mr. Khan appeared robotic when he attacked her and it appeared to her as though he did not know it was her.

[21] Once outside the house, Ms. Khan called 9-1-1 again and as it happened, the same ambulance crew returned to the house.

[22] Mr. Khan was found in the front foyer of the house at the foot of the stairs that lead to the bedrooms. Both of his wrists were broken and he had blood around his mouth area. He was tremulous. He was also speaking incoherently though with some variability. He recounted that he had been stabbed by his wife, though no obvious wounds were found on him. Once placed into the ambulance, he appeared to be speaking to persons who were not present. He had elevated blood pressure and breathing rates. He was very agitated and resisted assistance from the ambulance crew. He had to be restrained.

[23] Once at the hospital, the use of restraints continued as he was struggling and tried to rip out his IV. Mr. Khan was treated for his broken wrists and was given ketamine and a very high dose of valium. He appeared to be having both auditory and visual hallucinations. He appeared to be both seeing and speaking to his wife, who by this time had been hospitalized elsewhere due to her injuries. He also had a fever. By all accounts he presented with clear symptoms of delirium.

[24] His delirium lasted for a relatively lengthy period of time and indeed appears to have not fully abated by the time Mr. Khan was taken to a detention centre a few days later.

Psychiatric Evidence

[25] The defence retained Dr. Philip Klassen to provide a forensic psychiatric opinion on Mr. Khan’s state of mind at the time of the offences. Dr. Klassen provided a detailed report and gave clear, objective and helpful evidence.

[26] Based on his review of available file material as well his interviews with Mr. Khan he gave the following diagnoses:

First, Mr. Khan appeared to be suffering from an adjustment disorder with depressed mood.

Second, he diagnosed Mr. Khan as having an alcohol use disorder in sustained remission.

Lastly, and perhaps most importantly, he diagnosed Mr. Khan as suffering from substance withdrawal delirium at the time of the offences. In his view, Mr. Khan was likely or perhaps more than likely exhibiting all the classic symptoms of delirium tremens, which is, in effect, severe alcohol withdrawal delirium.

[27] In his testimony before the court, Dr. Klassen described in detail the nature of alcohol withdrawal delirium. He noted that a delirium brought on by alcohol withdrawal amounted effectively to a psychiatric emergency. The delirium would involve a very severe state of mental disturbance that was global in nature. As Dr. Klassen explained it, while a state of psychosis shares some similar attributes to a state of delirium, the delirium generally involves a more widespread disturbance of the brain.

[28] Dr. Klassen described delirium tremens as occurring because the body tries to compensate for the constant presence of alcohol by causing the central nervous system to ramp up. However, when alcohol intake suddenly stops, the body at time fails to respond quickly by ramping down the central nervous system. The result manifests itself in the symptomology presented in this case, including high blood pressure, high heart rate, increased breathing, agitation, insomnia and hallucinations.

[29] According to Dr. Klassen, the timing of the alcohol use reported in this case, in concert with the symptomology presented, including the long lasting effects of the delirium in combination with visual hallucinations and a fever, essentially amount to a text book example of delirium tremens. The only possible symptom that was not observed was a seizure, which can occur in some cases.

[30] Dr. Klassen acknowledged that Dr. Chaterjee, the court appointed assessor, opined that Mr. Khan either had delirium tremens or perhaps was suffering from a substance induced delirium. While he agreed with much of her report, in his view, based on the presentation and constellation of factors, he was able to say that the likely if not more than likely diagnosis was delirium tremens. On this issue, Dr. Klassen discounted the possibility of substance induced delirium on three bases:

First, alcohol was not likely a factor given the toxicology test and the fact that if significant alcohol had been consumed it would have negated or postponed the delirium.

Second, he discounted the marijuana as not being a relevant factor.

Lastly, while he acknowledged that the sleeping pills could in theory cause a delirium, the amount required to do so would be approximately 20 x the therapeutic dose. This possibility was contra-indicated by the toxicology screens and the collateral evidence.

[31] Dr. Klassen also gave evidence about the prevalence or predictable occurrence rate of delirium tremens. He explained that over the course of a lifetime, approximately 10 to 20% of the population will meet the diagnostic criteria of the DSM V for alcohol use disorder. At a particular point in time, only 5% of the population would do so. Of those who meet the criteria for an alcohol use disorder, only 3 to 5% run the risk of delirium tremens should they suddenly stop their intake of alcohol. In his view, out of 1000 people, 120 might be diagnosed over the course of their lifetime with alcohol use disorder and out of those only 5 or 6 might end up in a state of delirium after withdrawal.

[32] Importantly, Dr. Klassen noted that once withdrawal delirium had manifested itself, the chance of it occurring again increased 3 to 4 times to 9-20%.

[33] This fact supports in his view that the occurrence of delirium tremens is somehow related to specific neuropsychological make-up of the individuals who manifest the symptoms. As such, there appears to be a certain subset of individuals who have a particular vulnerability to severe withdrawal symptoms.

[34] Ultimately, Dr. Klassen advised that withdrawal delirium would be the most severe and least anticipated form of withdrawal.

[35] Lastly, Dr. Klassen opined that in this case, the violence inflicted was related to the delirium and not to the consumption of alcohol.

[36] In this regard, Dr. Klassen explained that in a state of delirium a person like Mr. Khan would not be able to understand the moral wrongfulness of his conduct. While the delirium condition would be fluctuating in terms of its severity by the minute and by the hour, Dr. Klassen indicated that it would be very reasonable to infer that at the time of the offences, Mr. Khan would not have been able to understand that his acts were morally wrong. In addition, while his report did not expressly state as much, Dr. Klassen indicated in his testimony that it was also likely that a person suffering a withdrawal delirium like Mr. Khan would not have the capacity to appreciate the nature and quality of his acts.

[37] In terms of voluntariness of a person’s actions while suffering delirium, Dr. Klassen opined that the person might be a bit more volitional than an automaton such as someone in a parasomnia but clearly less volitional than someone suffering from psychosis or schizophrenia.

The Law and Analysis

[38] Under s.16 of the Criminal Code, a person is presumed to be criminally responsible for their intended and volitional acts. Where a person seeks to be relieved of criminal responsibility on account mental disorder they bear the onus of establishing on a balance of probabilities that as a result of a disease of the mind they either did not have the capacity to appreciate the nature and quality of their actions or that they did not understand that that the acts they engaged in were wrong. See R. v. Chaulk, [1990] 3 SCR 1303 and R. v. Oomen, [1994] 2 SCR 507.

[39] The Criminal Code defines mental disorder as a “disease of the mind”. To state the obvious this definition is not entirely helpful. Indeed, it has been recognized as “circular.”

[40] In the absence of a more precise statutory guidance, the courts have undertaken great efforts to define and develop the term. The phrase “disease of the mind” is a legal concept and not merely a medical concept. The phrase captures any illness, disorder or abnormal condition which impairs the human mind and its functioning.

[41] The term “disease of the mind” is not fixed and inflexible. Instead, the term continues to evolve and is subject to developing legal, medical and policy determinations.

[42] That said, it has long been recognized that self-induced states caused by drugs and alcohol are generally excluded from consideration as a disease of the mind; See R. v. Cooper, [1980] 1 SCR 1149. However, the prohibition is neither a blanket prohibition nor a blunt proposition. In this regard, the courts have developed a holistic approach that examines whether a medically diagnosed disease of the mind constitutes a mental disorder in the legal sense; See R. v. Stone, [1999] 2 SCR 290 and R. v. Bouchard-Lebrun, [2011] SCC 58.

[43] In Bouchard-Lebrun, the Supreme Court examined whether a toxic psychosis stemming from PCP intoxication would amount to a disease of the mind for the purpose of an NCR defence. The court commenced its analysis by noting that the circumstances in which a toxic psychosis might develop were far from homogenous and indeed related to great number of factors. As a result, the court indicated that it was not prepared to simply conclude that a toxic psychosis was in all cases a disease of the mind from a legal perspective.

[44] Applying the methodology developed in Stone, the court in Bouchard-Lebrun looked at two analytical tools as well as policy considerations is assessing whether toxic psychosis related to the use of a certain type of drug in that case was a disease of the mind.

[45] The first analytical tool is described as the “internal cause factor”. This tool seeks to assess whether a normal person in the same circumstances of the accused would have suffered the same mental impact. In the context of the drug in question in Bouchard-Lebrun, the court considered whether the normal person, using the drug in the same circumstances as the accused would have reacted in the same fashion, namely by developing a toxic psychosis. If the normal person was not likely to experience toxic psychosis, the probable cause would be related to some internal feature of the accused and not some generalized external effect. In this fashion, the court attempted to draw a line between individuals who attempted to avoid criminal responsibility on the basis of a medical outcome that was generally anticipated following consumption of a substance and not related to some particular internal feature of the accused’s mental make-up. The Court referred to the evidence before it suggesting that some 50% of people using the drug in question in that case would develop a toxic psychosis.

[46] The second analytical tool is the “continuing danger factor”. This tool seeks to protect public safety by assessing the likelihood of a recurring danger to others. The tool requires that the court assess the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur; see R. v. Bouchard-Lebrun at para 73.

[47] The focus of this inquiry is on determining whether the accused poses an inherent risk of danger that persists despite his or her will. A danger to the public safety that is voluntarily created by the accused would not be the result of a “mental disorder” from a legal perspective.

[48] Lastly, the Court in Bouchard-Lebrun notes that the holistic approach established in Stone mandates consideration of the animating policy considerations. In this regard the court noted that the main policy consideration continues to be the need to protect society from the accused through the special procedures set out in Part XX.1 of the Code. An accused person who is a threat to others and requires treatment may more readily fit within Part XX.1 of the Code.

[49] Turning to the facts of this case, I accept Dr. Klassen’s opinion that at the material time, Mr. Khan was suffering from delirium tremens or substance withdrawal delirium. I also accept Dr. Klassen’s evidence that this is a medical diagnosis found within the DSM V and is from a medical perspective a disease of the mind.

[50] That finding of course, does not answer the question, which is whether delirium tremens is a disease of the mind from a legal perspective. In my view, on the case law and evidence before me, it is. I reach this conclusion for the following reasons.

[51] First, in R. v. Malcolm, (1989), 50 CCC 3d 172, the Manitoba Court of Appeal held that a state of delirium tremens was a disease of the mind for the purposes of s.16 of the Criminal Code. In that decision, the court examined whether the prohibition on a disease of mind stemming from self-induced states of intoxication found in R. v. Cooper extended to delirium tremens. The court noted that, "delirium tremens" is the label attached to an abnormal state of mind, which may follow the habitually excessive use of alcohol. It is not self-induced in the way of drunkenness, it is the supervening result of abuse over an extended period of time.”

[52] Since 1989, the Malcolm decision has been referred to on several occasions. Notably in Bouchard-Lebrun, the Supreme Court cited Malcolm in providing examples of instances where the courts have found toxic psychosis to be a disease of the mind. The court did not suggest that Malcolm was wrongly decided, though in fairness, it may be implicit from the later discussion in Bouchard-Lebrun that earlier cases deciding whether a particular mental disorder might amount in law to a disease of the mind are subject to revisiting using the holistic approach.

[53] That brings me to my second reason, which is simply that on the basis of the evidence before me filtered through the holistic approach set out by Bouchard-Lebrun, I am satisfied that as a matter of law, delirium tremens should be viewed as a disease of the mind from a legal perspective and I base this conclusion on the following:

• Dr. Klassen described delirium tremens as the most severe and least anticipated form of withdrawal. It is not a consequence of self-induced intoxication, rather it is caused by the rapid cessation of consumption. Oddly, continued intoxication would serve to prevent or at least delay the onset of withdrawal delirium.
• The delirium involves a global impact on the brain function and the central nervous system.
• It is often linked with violence.
• Dr. Klassen describes the delirium as idiosyncratic and relatively rare. It affects only 3 to 5% of people who fit within a diagnosis of alcohol use and viewed in context if between 10 to 20% of the population might qualify for such a diagnosis over their lifetime, 3 to 5% of the number is relative small number.
• Importantly, Dr. Klassen also explained that once a person experiences delirium from withdrawal there are much more likely to experience it again, suggesting that there is a subjective neurophysiological basis for the delirium.

[54] When I consider the whole of Dr. Klassen’s evidence, I am satisfied that the internal cause factor and continuing danger factor as discussed in Bouchard-Lebrun are both satisfied in this case. Delirium tremens is not simply a state of mental disorder caused by self-induced intoxication. It is a relatively rare but very severe withdrawal symptom caused by the cessation of intoxication. It is idiosyncratic and does not arise commonly for individuals who simply stop drinking. The manifestation of the delirium presents obvious public safety issues that are not simply related to the anticipated consequence of intoxication. Lastly, from a policy perspective this is the type of mental disorder that fits well within the goals and purposes of Part XX.1 of the Criminal Code.

[55] When I consider all of the evidence before me, including the joint position of counsel, I have no hesitation concluding that delirium tremens is, at least in this case, a disease of the mind as the Supreme Court of Canada has set out in R. v. Bouchard-Lebrun.

[56] I also find that Mr. Khan was likely suffering from delirium tremens or substance withdrawal delirium and that this condition rendered him unable to know that his acts towards his wife were morally wrong. While not necessary to do so, I would also find that his delirium likely rendered him incapable of appreciating the nature and quality of his acts. In short, I agree with both counsel that at the operative time, Mr. Khan was suffering from a disease of the mind that rendered him not criminally responsible when he stabbed his wife and as a result I will record the following verdicts:

On the count of attempt murder – not guilty.

On the count of aggravated assault – the act was committed but Mr. Khan is not criminally responsible.

On the count of assault with a weapon – a conditional stay of proceedings pursuant to R. v. Kienapple.

[57] While I heard some brief evidence from Dr. Klassen about the risk posed by Mr. Khan at this time, neither party asked that I make a disposition at this stage and I decline to do so.

[58] I remand Mr. Khan to appear before the Ontario Review Board as directed and no later than 45 days from today’s date in accordance with s. 672.47 of the Code.

[59] In accordance with s. 672.46(1), the bail conditions he is on will remain in effect until replaced by a disposition order of the board.

Certificate of Transcript

FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Pamela Thompson, certify that this document is a true and accurate transcript of the recording of R. v. Said-Artiom Khan in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario taken from Recording No. 4911_105_20190111_140523_10_DILUCAJ.dcr.

(Date) Pamela A. Thompson, C.V.C.R. Certified Verbatim Court Reporter / Authorized Court Transcriptionist

NOTE: Photostat copies of this transcript are not certified and have not been paid for unless they bear an original signature in blue and accordingly are in direct violation of Ontario Regulation 94/14, Courts of Justice Act, May 1, 2014