Court File and Parties

Court File No.: 39-22 Date: 2024 02 28 Ontario Superior Court of Justice

Between: His Majesty the King S. Wollaston, counsel for the Crown

– and –

Fahd Husain Khan Accused, Self-Represented B. Neil, as amicus curiae

Heard: February 26 and 28, 2024

Reasons for Decision – “NCR”

Conlan J.

I. The Background

[1] On Monday of this week, two days ago, Mr. Fahd Husain Khan (“Khan”) was arraigned on three very serious charges: (i) break and enter a group home and commit therein the indictable offence of attempt murder, (ii) attempt murder of a female worker at that group home, and (iii) kidnapping of Khan’s sister who was a resident of that group home.

[2] Khan pleaded not guilty to the charges.

[3] Khan represented himself at trial, although the Court had the benefit of the assistance of Mr. Neil, court-appointed amicus curiae.

[4] The only evidence presented at trial, on the issue of whether Khan committed the acts or not, was tendered by the Crown. It consisted of an actual video, of very clear quality and including audio, of the entire incident that occurred at the group home. It also consisted of a statement of facts agreed to and admitted by Khan.

[5] On the bases of those uncontroverted pieces of evidence, this Court determined that it had been proven by the Crown, beyond a reasonable doubt, that Khan committed the acts in question. The Court purposely stopped short of rendering a verdict of guilty, as it was clear from the proceeding before me, and equally clear from the history of the case as managed by my colleague, Justice Chozik, that the only real issue was whether Khan ought to be found not criminally responsible on account of mental disorder.

[6] On Monday of this week, continuing today, we heard evidence on the said issue. The only evidence tendered was that of Dr. Christine MacCauley, who, for reasons given by this Court both orally and in its written ruling dated February 26, 2024, was permitted to give expert opinion evidence in the field of forensic psychiatry including, specifically, (i) the assessment and treatment of mental disorders, and (ii) the assessment of whether someone, including Khan, is, from a forensic psychiatric perspective, not criminally responsible on account of mental disorder.

[7] During the evidence of Dr. MacCauley, we watched and listened to Khan’s police statement.

[8] The hearing concluded earlier today. The Crown gave submissions, not conceding the verdict of not criminally responsible on account of mental disorder. Amicus counsel gave submissions. Khan gave very brief submissions.

II. Short Conclusion

[9] For the reasons that follow, this Court, under section 672.34 of the Criminal Code, renders a verdict that Khan committed the acts in question but is not criminally responsible on account of mental disorder.

[10] Unless either the prosecution or the accused asks otherwise under section 672.45(1) of the Criminal Code, the Warrant of Committal shall provide that Khan is detained in a mental health facility or a hospital, pending a disposition hearing to be conducted by the Ontario Review Board.

[11] This Court declines to hold a disposition hearing or make any disposition itself and has resorted to the process outlined in section 672.47(1) of the Criminal Code.

III. Reasons for this Court’s Conclusion

[12] Under section 16(1) of the Criminal Code, no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[13] In our case, it is undisputed that Khan was suffering from a mental disorder at the time that he committed the acts in question. It is further undisputed that he was not incapable, at the time, of appreciating the nature and quality of those acts.

[14] The issue is whether, at the time, his mental disorder rendered him incapable of knowing that his acts were wrong.

[15] Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility, until the contrary is proven on the balance of probabilities: section 16(2) of the Criminal Code.

[16] The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. In our case, that party is Khan. The burden of proof is on Khan. The standard of proof is on the balance of probabilities.

[17] What is meant by the phrase, “knowing that [the act] was wrong”? The leading authority on this question is the decision of the Supreme Court of Canada in R. v. Oommen, [1994] 2 S.C.R. 507.

[18] There is no dispute in our case that Oommen, supra is the seminal authority in Canada on the said question.

[19] There is, in addition, no dispute in our case that Dr. MacCauley’s opinion, evident from her very thorough report authored in collaboration with Dr. Wu, is that Khan meets the definition of being not criminally responsible on account of mental disorder in that he, by reason of his mental disorder at the time of the acts, namely, schizophrenia manifested by psychotic symptoms and persecutory and religious delusions, was incapable of knowing that his acts were wrong.

[20] There is also no dispute in our case that the said opinion was arrived at on the basis of the Oommen, supra decision.

[21] There is no other expert opinion that has been tendered in our case.

[22] According to Oommen, supra, at paragraphs 20-21, the inquiry regarding criminal responsibility is broader than the question of whether the accused had abstract knowledge that the act would be viewed as wrong by society. Rather, it extends to the inability of the accused to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do. In other words, the inquiry focuses not on the general capacity of the accused to know right from wrong but rather on the ability to know that a particular act was wrong in the circumstances. “The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act”.

[23] The Crown has some concern that Dr. MacCauley’s expert opinion evidence may not be based on a complete understanding and application of the law. Specifically, the Crown relies on paragraph 24 of the decision of Justice Doherty for the Court of Appeal for Ontario in R. v. Dobson, 2018 ONCA 589, [2018] O.J. No. 3450.

[24] Some things are worth noting, even if they are stating the obvious. Oomen, supra was not overruled or distinguished by the decision in Dobson, supra. Second, in Dobson, supra, unlike in our case, there was a significant contest between competing expert witnesses at trial as to whether the accused knew that his actions were morally wrong – see paragraph 6 of Justice Doherty’s decision. Third, although Justice Doherty observed that some extracts from Oomen, supra may be open to different interpretations, there had existed, before Dobson, supra was decided, a consistent and unbroken line of authority from the Court of Appeal for Ontario on how Oomen, supra should be interpreted – see paragraph 22 of Justice Doherty’s decision.

[25] The penultimate statement of the Court of Appeal for Ontario in Dobson, supra, relevant to our case, is at paragraph 24 of the decision: “an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong”, and thus, is not entitled to an NCR defence.

[26] During our hearing, Dr. MacCauley was taken to paragraph 24 of the Dobson, supra decision. The expert testified, unequivocally, that, in her opinion, Khan, at the time, did not have the capacity to know that society regarded his actions as morally wrong.

[27] Dr. MacCauley elaborated on that point, referencing in part Khan’s police statement given very shortly after the acts were committed. According to Dr. MacCauley, Khan appeared at times during the interview to be suggesting that the police officer would have done the same thing if he was in the shoes of Khan. I concur in that observation. If anything, that suggests to this Court that Khan, if he had, at the time, the capacity to know anything at all about society’s regard for his actions, which is likely not the case according to the expert witness, probably believed that society would condone his actions.

[28] The Crown points to other evidence that might suggest that Khan was aware, at the time, that society regarded his actions as morally wrong, including but not limited to (i) Khan’s flight from the scene, (ii) his motive for having done what he did (to be reunited with his sister), and (iii) his comments to the police officer during the interview that he may want to leave Canada and go somewhere with his sister that is more compatible with his views.

[29] With respect, I am not conflicted by any or all of those things. The video of the incident is chilling and very unusual. Khan appears to be in a state of strangely flat and calm demeanour. Even after the victim manages to escape the residence, Khan takes his time retrieving his sister and casually walking with her to the outside and then down the road. He hardly appears to be a person fleeing from the scene. That Khan told the arresting police officer that he was ready to take his sister out of Canada, and that Khan had his passport in the vehicle that he was driving at the time of the arrest, are some evidence that he planned to leave the country with his sister. That may have been his plan, but that is not the same thing as flight from the scene. That he had a motive to do what he did, to be reunited with his sister, is not incompatible with a finding that Khan was incapable of knowing that his actions were wrong, or that society regarded his actions as wrong. Mentally ill persons are not immune from having motives to commit what would otherwise be criminal acts. That he spoke to the interviewing police officer about a possible relocation with his sister abroad could be explained by Khan’s desire to be somewhere that is closer to God than Canada is; in fact, that is essentially what Khan told the police officer at page 65, line 11, of the transcript of his audio-video statement.

[30] This Court accepts the expert opinion evidence of Dr. MacCauley. It was the only expert opinion tendered at the hearing. It is consistent with the statement of agreed facts and the video of the incident itself. It is not inconsistent with the police statement given by Khan. It is the product of a very thorough report by a witness who has considerable experience in assessing criminal responsibility within the meaning of section 16(1) of the Criminal Code.

[31] This Court, on the basis of all of the evidence adduced, concludes that it is more likely than not that Khan, at the time that he committed the acts in question, was suffering from a mental disorder that rendered him incapable of knowing that his actions were wrong and, for further clarity, incapable of knowing that society regarded his actions as wrong.

[32] Hence, the verdict rendered above in these reasons, pursuant to section 672.34 of the Criminal Code.

[33] The Crown cannot be faulted for being cautious in these circumstances. Khan approached the group home where his sister was living; entered without permission and against the clear protestations of the victim, a worker at the home; viciously attacked that worker by stabbing her several times with a large knife that he removed from a green bag that he had in his possession; and then proceeded to chase the victim throughout the home before she was eventually able to escape.

[34] In my view, however, the evidence in support of a finding of NCR is very strong in this case.

[35] The Court is grateful for the assistance of both counsel, Ms. Wollaston (for the Crown) and Mr. Neil (court-appointed amicus curiae).

Conlan J.

Released: February 28, 2024