R. v. Sulaiman Khail, 2025 ONSC 3791

R. v. Sulaiman Khail, 2025 ONSC 3791

COURT FILE NO.: CR-24-00016399
DATE: 2025-06-30
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
His Majesty the King
– and –
Seedjan Sulaiman Khail, Defendant

Heather Harty and Ngai On Young, Counsel, for the Crown
Anthony Marchetti, Counsel, for the Defendant

HEARD: April 14, 15, 16, 17, 22, 23, 24, 29, 30, May 6, 7, 12, 14, and 16, 2025

J. Speyer

A. Introduction

1Seedjan Sulaiman Khail is charged with one count of second-degree murder. His trial proceeded before me without a jury. There is no dispute that on November 4, 2022, Mr. Sulaiman Khail stabbed his father, Khan Sulaiman Khail, to death at their family home in Pickering.

2It is not disputed that Seedjan Sulaiman Khail knew that he was ending his father’s life by repeatedly stabbing him, and that he intended to do so.

3The only issue in dispute is whether Mr. Sulaiman Khail is criminally responsible for what he did. It is the position of the defence that Mr. Sulaiman Khail is not criminally responsible because he suffers from a mental disorder that rendered him incapable of knowing that his actions were wrong when he stabbed his father.

4With the agreement of Crown and defence counsel, the trial evidence was, except for the evidence of the experts, led in written or video-recorded form.

B. The Undisputed Facts

5The deceased, Khan Sulaiman Khail, and his wife, Fatima Sulaiman Khail, had four children: the defendant Seedjan, his older brother Seedkhan, his younger brother Sherjan, and his older sister, Maryam. Since all family members have the same last name, I will refer to them by their first names. In doing so I mean no disrespect. I do so for clarity. On November 4, 2022, Khan and Fatima lived in their house in Pickering with their three sons. Maryam lived independently. The defendant was 23 years old when he killed his father. At that time, Seedkhan was about 25 years old, Sherjan was 22 years old, and Maryam was about 26 years old.

6Khan and Fatima immigrated to Canada from Afghanistan in the 1990’s. Khan was a businessman. He owned a car dealership and several properties. Fatima was a homemaker. The defendant lived at home with his parents before his arrest. In the fall of 2022, he was unemployed and was enrolled in college, though during the weeks before November 4, 2022, he was not attending classes. He was financially supported by his parents. Seedkhan and Sherjan also lived in the family home.

7Khan returned home after work on November 4, 2022. Fatima was home. No one else was home. Fatima had made some soup and went out to the backyard to make bread on the barbeque. Khan was sitting in front of the television, relaxing, when she went outside. She closed the back door behind her because she did not want the cats to get out of the house. She proceeded to make the bread. She did not hear anything: not her husband or her son. When she tried to return to the house, the back door was locked. She knocked, but no one came to unlock the door. She looked in the window and could not see her husband. She heard the front door close loudly. That scared her and she ran around the house to the front door. She opened the front door and went into the house, where she found her husband on the floor, surrounded by a lot of blood, not breathing. She called 911.

8The only two persons present in the house when the stabbing occurred were the defendant and the deceased.

9The Crown tendered a video recording of vehicles travelling past a house that is across the road from the Sulaiman Khail residence and asks me to infer that a blue vehicle that approaches the Sulaiman Khail residence at about 6:51 p.m. is a BMW driven by the defendant. I am not able to draw that conclusion, because it is unclear to me whether or not the blue vehicle seen at 6:51 p.m. turned into the Sulaiman Khail driveway. The view of the Sulaiman Khail driveway is blocked by a large vehicle. In any event, nothing turns on this since on any account, the defendant was in the house for only a short time.

10At about 7:04 p.m., according to vehicle data obtained from the BMW, the defendant drove away from the house in a BMW M4 vehicle that was parked in the driveway.

11At about 7:08 p.m., Fatima called 911. She had difficulty communicating with the 911 operator because of a language barrier. She communicated that an ambulance was needed for her husband, who had been stabbed while she was in the back yard. While she was on the phone with the 911 operator, Seedkhan returned home from the gym. He took the phone from his mother and spoke with the 911 operator.

12Emergency services arrived at the Sulaiman Khail home on November 4, 2022, at 7:20 p.m., in response to the 911 call made by Fatima. They determined that Khan had no vital signs. They transported Khan to hospital, where he was pronounced dead.

13As first responders attended to Khan, Seedkhan told police that his BMW was missing, and that he had placed an Apple Airtag in the BMW that enabled him to track the location of the car. He showed police the tracking app, which indicated that the BMW was travelling southbound on the Don Valley Parkway, in the area of York Mills Road.

14The police were able to follow the route driven by the BMW using Seedkhan’s tracking app. The police helicopter pilot used that information to locate the BMW. The BMW had driven into Toronto, and then driven in an easterly direction to the area of Kingston Road and Galloway Road in Scarborough. At several points along the way, the BMW appears to have driven aimlessly. Police converged on the BMW and took the defendant into custody. The bloody knife used to stab Khan was located on the front passenger side floor of the BMW. Khan’s blood was on the defendant’s clothing.

15The defendant was arrested at 8:53 p.m. on November 4, 2022. He was transported to 17 Division of the Durham Regional Police Service.

C. Information Provided by Fatima, Seedkhan and Sherjan about Defendant’s Mental Health

16Statements made by Fatima, Seedkhan, and Sherjan to the police, both at the scene and during later police interviews, were admitted in evidence with the consent of the Crown and defence as if they had testified from the witness stand. Pursuant to their agreement, the credibility and reliability of those statements were to be assessed by me, considering all the evidence in the case. The parties agree that I may accept some, none, or all of their statements.

17The defendant’s family members were very aware that he had a mental illness. Since they did not testify, and statements were provided by Fatima, Seedkhan and Sherjan only in the immediate aftermath of the homicide, I have an incomplete understanding of their experiences with the defendant.

18Fatima was unable to communicate much about her son’s mental health issues. She had difficulty communicating in English. Fatima told police that the defendant started to have mental health issues when he was about 18 or 19 years old. He took medicine for his brain, and when he took his medicine, he was okay. When he stopped taking his medicine, as he did during the summer before the homicide, he was not okay. She also said that the defendant had been okay the week before the homicide, and during the preceding two months, though he was not taking his medication. Although he was not supposed to be living at the family home, but rather at another house owned by his father, pursuant to the conditions of a release order, he was getting a little bit better and did not want to live alone, and so he was permitted to return to the family home.

19Seedkhan told police that the defendant was okay until he was diagnosed with a mental illness when he was 20 or 21 years old. Seedkhan said that the defendant was a good kid who had a good childhood.

20Sherjan told police that after his brother was diagnosed with what he believed was schizophrenia, he was treated in hospital and medicated, and then things were “pretty fine” for some time. Then, in the summer of 2022, the defendant exhibited strange behaviour that “wasn’t normal” and “it was like escalating”. Sherjan described an incident in their garage where the defendant was “getting up in my face” and “acting very, like, weird”. Then the defendant attacked him, and the police were called. On another day, the defendant acted “absolutely nuts” and they made a videorecording to document his behaviour.

21Sherjan recalled that on November 4, 2022, the defendant seemed a lot better. He wanted to get a dog, and after he was urged by his brothers to get a hypoallergenic dog, he found one that needed a home and was excited about that. The defendant showed Sherjan a picture of that dog. When the defendant left to go get the dog, he seemed happy. The day before, the defendant had been in a pretty good mood. Sherjan recalled that both his parents were very nice to the defendant around that time.

22Sherjan explained that when the defendant is around police or doctors or hospitals, he can sometimes present as more stable than he is. At other times, he cannot control his behaviour.

D. The Verdict of Not Criminally Responsible Pursuant to Section 16 of the Criminal Code

23Section 16 of the Criminal Code provides for the verdict of not criminally responsible as follows:

16.(1) Defence of mental disorder – 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.

(2) Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) Burden of Proof – 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.

24Stated differently, if a person establishes, on a balance of probabilities, that they committed a wrongful act while suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of their actions, or of knowing the acts were wrong, they are not criminally responsible for that wrongful act.

25The term “mental disorder” is defined in s. 2 of the Criminal Code as “a disease of the mind.” A disease of the mind is a broad term which encompasses any illness, disorder, or abnormal condition that impairs a person’s mind or its functioning.

E. Mr. Sulaiman Khail Suffered from a Mental Disorder When He Stabbed His Father

26The Crown concedes that when Mr. Sulaiman Khail stabbed his father he suffered from a mental disorder. The two psychiatrists retained by the Crown and by the defence agree that Mr. Sulaiman Khail suffered from a mental disorder when he stabbed his father. I agree.

(a) Mr. Sulaiman Khail’s Psychiatric History

27Between 2018 and 2020, the defendant attended Niagara College, and lived away from his family. During that time, he began smoking cannabis often. He experienced his first episode of psychosis in 2020. When that happened, he drove home, and described his delusions to his family. Days later, he was apprehended under the Mental Health Act and admitted to hospital.

(i) February 16-28, 2020, Admission to Scarborough Centenary Hospital

28The defendant was brought to hospital by EMS and police after he was apprehended under the Mental Health Act. According to the discharge summary, cited in the report of Dr. Wilkie, he was “isolative, aggressive, renounced his religion, evidenced affective lability and was uncooperative with family. He had not slept for 3-5 days. He had been aggressive with members of the public when family attempted to bring him to hospital. In hospital, he was ‘markedly aggressive’ requiring physical and chemical restraint.” The defendant was diagnosed with an unspecified psychotic disorder, cannabis use, and cannabis induced psychotic disorder was not ruled out. He was discharged with a prescription for olanzapine, 15 milligrams daily, and trazodone, 100 milligrams daily. He was referred to the Lake Ridge Health early psychosis intervention program and was to follow up with his family physician.

(ii) March 3-12, 2020, Admission to Lakeridge Health/Ajax-Pickering Hospital

29The defendant was admitted to Lakeridge Health/Ajax Pickering Hospital on March 3, 2020, after his sister Maryam applied for, and obtained, a Form 2 under the Mental Health Act. He had been threatening to kill himself to save his family from other humans who he believed were artificial intelligence. He had been isolating himself and was at times aggressive. He presented as labile, paranoid, and grandiose. On March 6, 2020, he was placed on a Form 3. He was diagnosed with an unspecified psychotic disorder and cannabis use. He was prescribed a long-acting injectable antipsychotic medication which was administered to him monthly. He took that medication until June 2021 when he asked his doctor to switch to oral medication. His doctor acceded to that request due to the stability of his mental state. He discontinued his oral medication after one month. He stopped seeing the doctor in June of 2021 because he thought that his mental disorder was gone.

(iii) October 16, 2021, Attendance at the Emergency Department of the Lakeridge Health/Ajax Pickering Hospital

30On October 16, 2021, the defendant attended at the emergency department of the Lakeridge Health/Ajax Pickering Hospital. He reported that he had been diagnosed with drug induced psychosis. He described symptoms. He was hearing noises and questioning whether his friend was real. He was not taking his medication. He was discharged home with a prescription for paliperidone.

(iv) June 17-July 29, 2022, Admission to Toronto General Hospital

31The defendant was admitted to the Toronto General Hospital on June 17, 2022, following an incident of dangerous driving. Mr. Sulaiman Khail drove a car southbound on the Don Valley Parkway in Toronto. He drove at an estimated speed of 200 kilometers per hour in a 90-kilometer per hour zone, cutting in and out of traffic. Numerous calls were received by emergency services reporting his driving conduct. He attempted to overtake slow traffic and lost control of his car and struck two other vehicles. Mr. Sulaiman Khail then fled, traveling westbound on the Gardiner Expressway, where his disabled vehicle came to a stop. Police attended and spoke to him, and he was arrested for various driving related offences. He was transported to hospital because he complained of injuries sustained in the collisions. When he was brought to hospital, he exhibited bizarre behavior including screaming when an IV was inserted. He also appeared to have an argument with his father. He was somewhat grandiose. He was labile, tangential, and spoke in a philosophical way. He denied hallucinations. He became extremely agitated and required chemical and mechanical restraint. He was described as irritable, confrontational, highly psychotic and paranoid with delusions about health care staff and his family.

32The defendant was found to be incapable regarding medication treatment and his father was assigned the role of substitute decision maker. The defendant was transferred to the Psychiatric Intensive Care Unit at Toronto General Hospital. In nursing notes during this admission, Mr. Sulaiman Khail is described as clearly psychotic, paranoid, disorganized, argumentative, and impulsive. He was treated with paliperidone, and his mental state started to improve.

33Throughout this admission, Mr. Sulaiman Khail described verbal and physical abuse from his father. He was suspicious of his parents and refused to permit them to visit him. He reported that his uncle was abusing his wife and three daughters.

34The defendant was discharged from Toronto General Hospital on July 29, 2022, against medical advice, when he became a voluntary patient. The discharge diagnosis was Bipolar 1 Disorder, mania with psychosis. There was also a provisional diagnosis of schizoaffective disorder. He was to follow up with the early psychosis intervention program in the community and continue with medication treatment. He told Dr. Wilkie that he was discharged with a prescription for paliperidone but took it for only one day.

(v) Events between July 29, 2022, and August 10, 2022

35The two weeks between July 29, 2022, and August 10, 2022, were a tumultuous time for the Sulaiman Khail family. Following his discharge from Toronto General Hospital on July 29, 2022, the defendant returned to live with his family. Police were called numerous times in response to his behaviours in the home.

36On August 7, 2022, shortly before midnight, police attended at the Sulaiman Khail residence after receiving a call from Khan who stated that the defendant was on the roof. Khan explained that the defendant had been released from hospital and was not taking his medication. When police arrived, the defendant was in his bedroom. He told the officers that he had been on the roof because he was looking at the stars. He was polite with police, and they had no grounds for a Mental Health Act apprehension at that time.

37On August 8, 2022, police were again dispatched to the Sulaiman Khail residence after Sherjan called 911 to report that the defendant had attacked him. The defendant had also called 911, claiming that Sherjan had attacked him. Police encountered the defendant first and obtained his account of what happened. Police then spoke with Sherjan. Sherjan expressed concern for the defendant’s mental wellbeing and told police that he was not taking his medication. Police determined that there were no grounds for a Mental Health Act apprehension at that time. Khan arrived and told police that he would take the defendant to their other property for the night to keep the brothers from fighting. Video-recordings created on the body-worn cameras of the police are in evidence. When his father arrived and spoke with him, the defendant became argumentative, agitated, and aggressive towards his father. He falsely told the police officers that he was taking his medication every day. He criticized his father for telling others that he was not taking his medication and that people treated him differently because his father told others about his problems.

38On August 9, 2022, police were called by the defendant. He reported that someone in the home had stolen $18,000 from a drawer in his bedroom. Police attended and spoke with the defendant outside the house, and offered to speak with other family members, but the defendant declined further assistance and walked away into the house.

39After they left, the police received a call from Seedkhan, asking them to return to the house because the defendant had become angry and kicked holes in the wall and broke a glass-topped coffee table. These events were recorded on a cell phone. That recording is in evidence. During this incident the defendant loudly and profanely demanded that his mother and brother give him “his stuff”. His mother was obviously distressed. After he kicked holes in the drywall and broke the table, he called his mother and brother “bitches” and told them to run as they fled up the stairs. He was loud, aggressive, violent and threatening towards them. It would have been terrifying for his mother and brother. These events occurred before the defendant called the police that morning. When he spoke with the police after he called them, the defendant presented as calm, a marked contrast with how he presented to his family a short time before that. This event, and sequence of events, tells me several things. It tells me that the defendant was experiencing symptoms of his psychotic illness in the summer of 2022, several months before the offence. It tells me that the defendant can experience a delusion (that his family stole his property), but also act out towards his family in a fashion that demonstrates that he is well aware of the impact of his actions on them, and that he intends his actions to have that impact (by calling them “bitches” and moving menacing towards them).

40When the police arrived in response to the 911 call, the defendant was not there because his mother had taken him to their other house. The police spoke with Sherjan and Seedkhan, and then with Khan, who explained to the officers that the defendant had been released from hospital one week earlier. Khan explained an incident three days earlier where the defendant took a car from the driveway and drove dangerously. Khan explained that he did not want the defendant in the house because it was possible that he would kill someone because he did not know what he was doing. He wanted the police to tell the defendant that he would have to stay away from the family home, and live in the family’s other house, that his family was not against him and that they were doing their best. Khan felt that he had no other choice, and directed the police to charge the defendant with mischief so that he could be released on conditions not to return to the family home.

41After receiving direction from Khan that he wanted the defendant to be charged with mischief for the damage he had done to the house, officers proceeded to the other house owned by Khan. The defendant had been taken there by his mother and was outside the house. Khan also arrived at the house. The police officer arrested the defendant for the offence of mischief, after telling him that Khan wanted him to be charged with mischief. The officer told the defendant that he would be released on conditions that prohibited him from returning to the family home. During the arrest, the defendant verbally challenged the officer. He was angry and argumentative. His speech was repetitive and pressured. He told his father repeatedly to “go fuck yourself” and called him a “piece of shit”. The release order that the defendant was subject to after his arrest for mischief prohibited him from attending at the family home.

(vi) August 11-19, 2022 - Admission to Lakeridge Health/Ajax-Pickering Hospital

42On August 10, 2022, the defendant was apprehended by the police, on the authority of a Form 2 issued pursuant to the Mental Health Act, obtained by his family. The defendant was transported to the Ajax-Pickering hospital, where he was admitted. Initially, he was emotional, hostile, and aggressive. He was re-started on paliperidone, and his condition improved. He was discharged on August 19, 2022, with a diagnosis of schizoaffective disorder, bipolar type.

(b) The Evidence of Dr. Iosif and Dr. Wilkie

43Two psychiatrists testified at the trial. Dr. Iosif was retained by the defence. Dr. Wilkie was retained by the Crown. Both are very experienced, knowledgeable, and well-respected forensic psychiatrists. Their opinions were consistent in many respects. They agreed that Mr. Sulaimon Khail had a psychotic illness and that he experienced psychotic symptoms when he killed his father. They disagreed about whether Mr. Sulaimon Khail’s psychotic illness rendered him incapable of knowing that stabbing his father was morally wrong.

(i) Dr. Iosif

44Dr. Iosif was qualified, on consent of the Crown, to provide opinion evidence in the area of forensic psychiatry. She has been so qualified on many prior occasions. Dr. Iosif was certified by the College of Physicians and Surgeons of Canada as a forensic psychiatrist in 2013. She has been a staff psychiatrist at the Center for Addiction and Mental Health (“CAMH”) in Toronto since 2009. She is a lecturer in forensic psychiatry at the department of psychiatry, faculty of medicine at the University of Toronto. She has many other qualifications and appointments.

45Dr. Iosif met with the defendant three times in the summer of 2023, for a total of 11 hours, via video conference. Although the defendant gave Dr. Iosif permission to speak with his sister and brother, and provided numerous friends contacts, only Seedkhan and one friend agreed to speak with Dr. Iosif.

46Dr. Iosif testified that it is fairly clear that Mr. Sulaiman Khail suffers from a primary psychotic disorder, most likely schizoaffective disorder. Schizophrenia or bipolar disorder cannot be ruled out.

(ii) Dr. Wilkie

47Dr. Wilkie was qualified, on consent of the defence, to provide opinion evidence in the area of forensic psychiatry. She has been so qualified on many prior occasions. Dr. Wilkie was certified by the College of Physicians and Surgeons of Canada as a specialist in forensic psychiatry in 2013. She is presently the Associate Chief Medical Officer at CAMH. She is an associate professor in forensic psychiatry at the department of psychiatry, faculty of medicine at the University of Toronto. She has been a staff psychiatrist at CAMH since 2005. She has many other qualifications and appointments.

48Dr. Wilkie testified that the defendant suffers from a mental disorder and was likely experiencing symptoms of that disorder at the material time given that he had not been taking medication for approximately two months and he was evidencing observable behaviours that were indicative of psychotic decompensation.

49Dr. Wilkie concluded that the defendant “evidences a primary psychotic disorder, schizoaffective disorder, bipolar type”. Schizophrenia and bipolar disorder cannot be ruled out. Dr. Wilkie explained that schizoaffective disorder is a disorder in which there is an uninterrupted period of illness that meets criteria for both a major mood episode as well as psychosis that would be seen in schizophrenia. An individual with schizophrenia suffers from symptoms of psychosis. Psychosis is generally defined as the presence of delusions, hallucinations, grossly disorganized thought and behaviour, or some combination of these. Social and occupational decline are often prominent, as are a diminution of motivation and self-care. To meet criteria for schizoaffective disorder, one must have at least: a two-week period of hallucinations or delusions in the absence of a major mood episode; and symptoms that meet criteria for a major mood episode are present for the majority of the total duration of the active and residual portions of the illness. The course of illness may be adversely affected by psychosocial stress, an unstructured living situation, alcohol or street drug use, and noncompliance with psychiatric treatment, in particular pharmacotherapeutic treatment.

50In Dr. Wilkie’s opinion, the defendant was likely experiencing symptoms of his mental disorder at the time of the index offense. These symptoms likely included grandiose, referential and paranoid delusions, and possibly visual and auditory hallucinations.

(c) Conclusion Regarding Mental Disorder

51I am satisfied on a balance of probabilities that Mr. Sulaiman Khail suffered from a mental disorder at the time of the offence. I accept the opinions of Dr. Iosif and Dr. Wilkie that Mr. Sulaiman Khail has a mental disorder, specifically schizoaffective disorder and that schizophrenia and bipolar disorder cannot be ruled out, and that he was experiencing symptoms of that mental disorder at the time of the offence.

F. Did Mr. Sulaiman Khail’s Mental Disorder Render Him Incapable of Appreciating the Nature and Quality of His Actions or of Knowing They Were Wrong?

(a) Mr. Sulaiman Khail Appreciated the Nature and Quality of His Actions

52The parties agree that when Mr. Sulaiman Khail stabbed his father, he appreciated the nature and quality of his actions. I agree.

53To “appreciate” requires a greater level of understanding than “to know”. To “appreciate”, an accused must have more than a bare awareness of the act that forms the basis of the offence charged. It requires an accused understand the physical nature, character, and consequences of the act. It connotes the ability to measure and foresee the consequences of violent conduct.

54The defendant told both Dr. Iosif and Dr. Wilkie that he knew that when he stabbed his father, he knew that he was ending his father’s life, and that he intended to do so.

55I find that the defendant understood the physical nature, character, and consequences of his actions. He foresaw the consequences of his violent conduct. He appreciated the nature and quality of his actions.

(b) Did Mr. Sulaiman Khail Know That His Actions Were Wrong?

(i) The Applicable Law

56A person who suffers from a mental disorder that renders the person incapable of knowing that the act they are committing is wrong is exempt from criminal responsibility. Our law presumes that a person does not suffer from a mental disorder that exempts him from criminal responsibility until the contrary is proven by him on a balance of probabilities.

57In the context of s. 16(1) of the Criminal Code, the word “wrong” means both legally and morally wrong: R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1354-5. In this case, the parties agree that Mr. Sulaiman Khail knew that stabbing his father with the intent to kill him was legally wrong. Both psychiatrists are of the opinion that Mr. Sulaiman Khail knew that killing his father was legally wrong. As Mr. Sulaiman Khail said, he knew that when he was arrested, he would go to jail. The contested issue in this case is whether Mr. Sulaiman Khail knew that killing his father was morally wrong.

58In R. v. Oommen, [1994] 2 S.C.R. 507, paras. 20-21, the Supreme Court considered what was meant by the phrase “knowing that [the act] was wrong” in s. 16(1) of the Criminal Code. McLachlin J., as she then was, questioned whether it refers “only to abstract knowledge that the act of killing would be viewed as wrong by society” or whether it extends to “the inability 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”? Writing for a unanimous Supreme Court, McLachlin J. stated:

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity 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 the abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

59McLachlin J. identified the “crux” of the inquiry in para. 26:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case -- delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

60McLachlin J., at para. 30, identified the “real question” as:

whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

61The Ontario Court of Appeal considered the “wrongness” component of s. 16(1) in R. v. Dobson, 2018 ONCA 589; leave to appeal denied 2019 58134 (SCC). Doherty, J.A. concluded, at para. 24:

In my view, Oommen, as interpreted in the judgments of this court, holds that 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. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

62More recently, in R. v. Bharwani, 2023 ONCA 203, leave to appeal granted, 2023 122408 (SCC), at paras. 233-4, a five-member panel of the Ontario Court of Appeal considered the NCR defence. The court affirmed the paragraph from Dobson, quoted above.

63To reach a verdict in this case, I must determine whether, on a balance of probabilities, Mr. Sulaiman Khail lacked the capacity to know that his actions were wrong according to the ordinary moral standards of reasonable members of society. If Mr. Sulaiman Khail had the capacity to know that his actions were wrong according to the ordinary moral standards of reasonable members of society, he is criminally responsible for his actions, even if he believed that he had no choice but to act, or that his acts were justified.

(ii) The Evidence of the Experts

64Dr. Wilkie explained that when the issue of moral wrongfulness is examined, it is important to understand the burden of symptoms that the defendant may have been experiencing at the material time. She noted several factors that point to a lesser burden of symptoms. They include: 1) the defendant’s decision that day to drive in spite of knowing he did not have a license and that this was a criminal act; 2) his ability to drive; 3) his communication with his family which they described as happy; 4) his family did not note any overt symptoms; and, 5) his interactions with the police after his arrest in which he did not evidence overt delusions or perceptual abnormalities. Factors that point to a greater burden of symptoms are his preoccupation with the wording used by the police officers at the time of his arrest in relation to his right to counsel, and his self-report of psychotic symptoms that led him to commit the index offence.

65Dr. Wilkie identified the “central questions” in this case as 1) the relationship, if any, between the symptoms and his actions in the index offence; and 2) whether the burden of his symptoms influenced his ability to know the wrongfulness of his actions.

66Dr. Wilkie considered it “challenging to decipher the specific nexus between the defendant’s likely symptoms and the index offence.” This is because there were many discrepancies between the self-reports that the defendant provided about what happened and why it happened. Given those discrepancies, it was not possible for Dr. Wilkie to be specific about the nexus between the defendant’s symptoms at the time of the offence and his actions. Dr. Wilkie considered it possible that he was delusional about his father's actions or associations regarding an attempted rape in his childhood. But it was also possible that he was angry with his father, or delusional, regarding their long-standing relationship conflict and his perception that his father did not respect him and tried to manipulate him.

67Dr. Wilkie concluded that the defendant’s symptoms from his mental illness likely did not preclude him from knowing what he was doing was wrong, according to the ordinary moral standards of reasonable members of the community. It was Dr. Wilkie's opinion that from a psychiatric perspective and on a balance of probabilities a defense of not criminally responsible would therefore not be available to him on that basis.

68Dr. Iosif came to a different conclusion. Dr. Iosif concluded that, “based on the psychotic symptoms he was experiencing at the material time, Mr. Sulaiman Khail was unable to access rational choice regarding the index offence and lacked the capacity to know the moral wrongfulness of his actions.”

69Like Dr. Wilkie, Dr. Iosif considered the analysis of the defendant’s capacity to appreciate the moral wrongfulness of his actions to be difficult. She begins the final part of her report with the following caveat:

The analysis of criminal responsibility in this case is complex, and layered with uncertainty flowing from a combination of lack of documentation, limited collateral information and various contradictions between sources. Mr. Sulaiman Khail’s self-report is also very problematic, as it is steeped in a combination of positive impression management, unreliability (he provided a deliberate false account to police and a report of malingered symptoms to yourself)[1], and potential general guardedness about the true nature of his symptoms and beliefs.

70For reasons that I will explain next, I do not accept Dr. Iosif’s conclusion that Mr. Sulaiman Khail lacked the capacity to know the moral wrongfulness of his actions.

71First, notwithstanding her assessment of the defendant’s self-reports as “very problematic”, Dr. Iosif relied on those self-reports.

72Some of the information provided to Dr. Iosif was incorrect, or incomplete. She did not have his complete hospital records. She reported that since Mr. Sulaiman Khail’s driver’s licence was suspended in June 2022 because of a motor vehicle accident that took place on June 14, 2022, he had had no access to a motor vehicle. That is simply not true. It is also contradicted in other parts of Dr. Iosif’s report, where she describes the defendant’s account of November 4, 2022, that included instances of him driving. Similarly, Dr. Iosif believed, based on inaccurate information that she received from the defendant’s brother, Seedkhan, that the defendant had been hospitalized a week before he stabbed his father. She was not aware that the according to the family, the defendant was doing better during the two months preceding the stabbing than in the summer of 2022. Her opinion was based on her belief that his psychotic symptoms had actively continued for several months before the homicide. When she was asked whether this information would have any impact on her conclusion, she said that it would not.

73Dr. Iosif asked the defendant if he thought his actions were morally justified. He told her that “it went against all my instincts of only defend yourself in this life…I wasn’t thinking it was moral, I just did it.” Dr. Iosif asked if one should go and kill the perpetrator when bad things happened to people. He replied, “Not in all cases but people should be able to get their own justice. When children are involved, you have to go past that line.” He continued to believe that he made the right choice. Dr. Iosif did not explain why these statements – that he knew there was a line, and decided to cross it - did not reveal Mr. Sulaiman Khail’s capacity to know his actions were morally wrong at the material time.

74The defendant told Dr. Iosif that after he stabbed his father “reality hit me about what I did, I didn’t want to be there…I realized I had killed him, there would be no more hanging out with my family, just jail.” While this statement demonstrates an awareness of the legal wrongfulness of his actions, it also reveals an awareness of the ordinary moral standards of reasonable members of the community. Dr. Iosif did not appear to have taken these statements into account is assessing the defendant’s capacity to assess the moral wrongfulness of his actions.

75Dr. Iosif explained that “there was a dearth of relevant collateral sources and information they provided was often contradictory to Mr. Sulaiman Khail’s self-report.” But that absence of information and its contradictory nature did not cause Dr. Iosif to question Mr. Sulaiman Khail’s self-report.

76Dr. Iosif applied a test for assessing capacity to know that society regarded his actions as morally wrong that is different from the test articulated in Dobson and Bharwani and Oommen. She focussed on the defendant’s inability to “access rational choice”, rather than on his capacity to know right from wrong. As Dobson instructs, a person who has the capacity to appreciate moral wrongfulness will be criminally responsible even if he believed that he had no choice but to act, or that his acts were justified. The direction provided in Oommen is that a person will be NCR if mental disorder at the time of the act deprived the person of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. Only if the capacity for rational choice is undermined by compromised capacity for rational perception about the rightness or wrongness of the act will criminal responsibility be averted.

77Dr. Iosif considered it important that there was no reality-based event that precipitated the stabbing. However, the fact is that we do not know whether there was or was not such an event. There is no reliable evidence about what happened leading up to the stabbing. I do not accept Mr. Sulaiman Khail’s various accounts of what happened, except as to the fact that he locked the back door before he stabbed his father to keep his mother out of the house, that he picked up a knife in the kitchen that he used to stab his father, that he stabbed his father numerous times in vital areas of his body, intending to kill him, and that he fled, taking his weapon with him. I will explain.

78I will describe the inconsistencies present in Mr. Sulaiman Khail’s self-reports in some detail, and then note why significant aspects of his self-reports are unreliable, and do not provide a solid foundation for expert opinions.

(i) Mr. Sulaiman Khail’s Self-Reports

79Mr. Sulaiman Khail has provided different accounts of what he experienced before he stabbed his father.

(1) He told his then counsel, on December 8 and 21, 2022, as recorded by counsel in memos provided to Dr. Iosif, that when he arrived home, he saw his father sitting on the living room floor. He asked his father “what happened to me and my brothers in Afghanistan in 2010?” His father responded, “I don’t know.” The defendant then grabbed a knife and confronted his father. He grabbed the knife because he knew that he had to have the knife. He thought that his father had set up the sexual abuse of his brothers and him in 2010. He thought that his father was a “shadow person”, like those who had set up a girl whose picture he saw earlier that day on the ground. He said that “I needed the knife for the protection of other people, not my own protection. For the protection of children. I think it’s like a sex ring involving children. They [the shadow people] tried to get me involved that day and I rejected it. My dad was part of the organization. I used the knife to end the long-term suffering of other children.” He said: “I stabbed my dad because I knew he was one of the shadow people and he had set me up to get raped in 2010, but it didn’t happen because I woke up.” The defendant explained: “In 2010 in Afghanistan, I slept at the home of one of my dad’s friends. I woke up to a man pulling down my pants and spreading my butt cheeks, but I waved him off and the rape didn’t happen. I didn’t turn around to look. I thought my dad had set me up as an offering to the people that associate with the shadow people, maybe because my dad had raped a child so he had to offer his own child, or he would get exposed.” The defendant said: “I stabbed my dad quite a few times. My intent was to kill him. Neither one of us said anything. I stopped stabbing because he fell to the ground, and I thought he was dead.”

(2) The defendant told Dr. Mamak, a psychologist retained by the defence, on November 24, 2023, that while out for a walk after he returned home, he thought of his two brothers and their experience of abuse. He explained that when the family visited Afghanistan in 2010, his brothers were sexually assaulted by a family friend, and he was almost sexually assaulted. He felt angry at his father, who had not been there to protect him or his brothers and thought about killing his father. As he had this thought, he saw a ball of fluff float by. He took that as a message from God that he should kill his father. He was confused, but the message was compelling. After receiving this message, he returned home. His father was watching television, and his mother was outside in the backyard. He asked his father about a vehicle that was parked in the driveway. He took the keys and went outside to look at the car. He again saw a ball of fluff and interpreted that as a sign from God telling him to kill his father. When he returned to the house, he confronted his father about what happened in Afghanistan in 2010. His father kept saying that he did not know. The defendant then walked to the back door and locked the door, retrieved a knife from the kitchen and placed it inside his sweater. His mother knocked on the back door and his father asked him to open the door. The defendant declined to do so, and when his father got up to go to the door, the defendant stabbed him multiple times.

(3) The defendant told Dr. Iosif, in the summer of 2023, that when he came home, he decided to go for a walk. While walking in the neighbourhood, he saw two men who he thought would attack him. He swore at them. He said that “I knew they were in contact with the people who are abusing the girl, but they don’t care. These are the people I have to protect her against.” He then ran home to get away from the people. His thoughts of the girl caused him to reflect back to a family trip to Afghanistan in 2012. He remembered that when he was 12 years old, when he was in Afghanistan, he woke up one night to find a man standing over him trying to pull down his pants. He managed to shove the man away. He told Dr. Iosif that he came to know in 2022, during a psychiatric hospital admission, that his brothers were raped during the 2012 trip. During a telephone call with them he asked them, and they told him that they did not remember that. But the defendant was convinced that it happened. He did not tell anyone that he was touched because he was ashamed. He believed that the sexual assaults were his father’s fault, because his father had sent the family to Afghanistan, and may even have orchestrated the assaults. He thought that his father had given permission to his friend, their host, to sexually assault the children. The defendant told Dr. Iosif that as he was walking home on November 4, 2022, he reflected on his father’s involvement with sexual assaults against children and thought to himself, “what do I do, kill him?” When he asked this question, he saw a “white fuzzy ball” which he saw as a sign from God and meant a strong endorsement of his thought. When the defendant arrived home, his father was in the living room and his mother was outside, preparing food. He took the keys to a new car that his father had brought home and went outside to the driveway to check out the car. While he sat in the car, he debated with himself, knowing that God wanted him to kill his parent. He hesitated as he felt he “didn’t have the stomach for [killing].” He asked God a second time about killing his father and again saw the same sign, a white ball floating just outside the car. He felt torn between feeling that he could not do what God asked of him, and the double confirmation he had received regarding the divine order. He returned to the house and thought of a means to kill his father. He locked the back door so that his mother could not come inside, and he waited, pacing in the kitchen. He paced, trying to find the courage to stab his father. He grabbed a knife from the counter and put it in his pocket. He thought that he could not kill his father. After about 15 minutes, his mother began knocking on the back door and his father told him to open it. He refused and his mother knocked again. His father got up to open the door himself. The defendant realized that his plan would be ruined if he did not act then, and he stabbed his father five or six times. His father looked shocked. The defendant was “not thinking. Just doing” as he stabbed his father. After the stabbing, he grabbed car keys and left immediately. He thought that his arrest was inevitable, but he did not want to be beside his father because of what his father did. He was angry. He also was worried about what his mother and brothers would think of him. He thought they would condemn his actions.

(4) The defendant told Dr. Wilkie, in the fall of 2024 and winter of 2025, that he knew that something happened to him in Afghanistan when he was 11 years old, and that something had also happened to his brothers. He believed that his father was involved. He saw a floating ball with small white lines on it and he asked the ball: “do I kill him?” He walked into the family home. He knew that his mother was there but did not know if anyone else was home. He locked the back door so his mother would “be ok…she had nothing to do with anything.” He went outside to his car and saw the white ball again. “I asked, is this for real…I asked again.” When he was asked by Dr. Wilkie why he killed his father, he responded, “it was not my decision.” He said it was “cause of what happened”, referring to the sexual assault when they were children. When asked if he knew if was morally wrong, he replied, “I don’t know if it was wrong…there was no line.” He said that it would not have happened if his mother, or any other family member was inside the home” and that he wished that his mother would have been inside.

(5) When he spoke with the police after his arrest, the defendant denied that he killed his father. He did suggest that his father had enemies who might have wanted to harm him. He told Dr. Iosif that he was trying to cause trouble for the police.

(ii) The Weight to Be Given to Mr. Sulaiman Khail’s Self-Reports

80Mr. Sulaiman Khail’s self-reports are unreliable. There are several reasons to doubt the veracity of what he has said to others.

(1) It was obvious in court that the defendant feigned symptoms of mental illness. On one occasion, during Dr. Iosif’s evidence, he suddenly shouted that he could see his sister, and he shouted for her to leave. He then shouted, “I’m have a psychotic attack right now” and “I’m being psychotic”. He calmed down quickly and explained, “Sorry about that. I haven’t taken my meds.” Then he said, softly, but captured on the court’s audio recording of the proceedings: “Just trying to move things in my favour.” Dr. Iosif opined that the defendant’s statement that he saw his sister in the courtroom “was malingered”, which I take to mean feigned.

(2) Mr. Sulaiman Khail has reported symptoms that are not compatible with recognized psychiatric phenomena. His accounts of seeing people “teleporting”, and seeing objects appear and disappear are not “genuine psychotic phenomenology”, according to Dr. Iosif. She described such statements as “an attempt at malingering psychiatric symptoms.” Dr. Wilkie testified that Mr. Sulaiman Khail’s account of seeing white balls is atypical.

(3) There was a significant discrepancy in relation to the role of the white balls. To Dr. Iosif, Mr. Sulaiman Khail said that the white balls conveyed a command to him from God to kill his father. To Dr. Wilkie, Mr. Sulaiman Khail said that the white ball appeared, and he asked it a question, and it confirmed his suggestion that he should kill his father. Mr. Sulaiman Khail’s description of the white balls also evolved, from no mention of them in his account to his counsel in December, 2022, to “a ball of fluff” to Dr. Mamak in November 2023, to “a white fuzzy ball” to Dr. Iosif, and to a “floating ball with small white lines on it” to Dr. Wilkie.

(4) Dr. Iosif reported that Mr. Sulaiman Khail’s self-report is very problematic, “as it is steeped in a combination of positive impression management, unreliability…, and potential general guardedness about the true nature of his symptoms and beliefs.”

(5) Mr. Sulaiman Khail terminated his interview with Dr. Wilkie when she asked him about the inconsistencies in his accounts.

G. Conclusion

81I have considered and applied the test set out by the Supreme Court of Canada in Oommen and by Court of Appeal for Ontario in Dobson. Applying the legal test to the facts in this case, I am satisfied on a balance of probabilities that Mr. Sulaimon Khail, at the time of the offence, had a mental disorder, but I am not satisfied on a balance of probabilities that his mental disorder rendered him incapable of knowing that his actions were wrong. Although he viewed his conduct as justified according to his own moral code that was influenced by his mental illness, he knew that society would view his conduct as morally wrong.

82Mr. Sulaiman Khail would not have stabbed his father if police or members of his family were present. Dr. Iosif asked the defendant whether he would have stabbed his father if a police officer was standing there. He responded “No, because if someone else was there…it would have made me come to my senses.” He also said that if his mother had been there, he would not have stabbed his father because “I could never do it in front of her. I wouldn’t want her to see it.” The defendant told Dr. Iosif: “I knew it would have been wrong in front of them…it would destroy them mentally.” The defendant said that they would condemn his actions if they did not know the full story. That tells me, as it told Dr. Wilkie, that Mr. Sulaiman Khail had the ability to know right from wrong and had the ability to apply that knowledge in a rational way to his actions.

83Mr. Sulaiman Khail locked the back door before he stabbed his father to prevent his mother from entering the house. He took active, organized, and rational steps to prevent his mother from interfering with his ability to kill his father.

84Mr. Sulaiman Khail fled immediately after stabbing his father, and took his weapon with him, which is consistent with an immediate desire to avoid apprehension, and in the circumstances of this case, to avoid the immediate judgement and condemnation of his mother. He knew he would be arrested, and he would go to jail, because what he did was morally wrong according to the standards of society. He was able to rationally assess what the response of his mother and the police to his actions would be, and to choose a course of action that at a minimum would defer the need for him to deal with those responses.

85Mr. Sulaiman Khail had a conflicted relationship with his father. He reported to the mental health professionals who assessed him during this trial that his father had beaten him when he was a child. There is support for this account. Health records indicate that he told a social worker that he was abused as a child and had been trying to build a relationship with his father but had not been successful. He felt that his father always put him down and made him feel like an idiot. The physical abuse was discussed during a family meeting with both parents in hospital and the defendant said that he forgave his father and apologized to his father for disclosing the information to the social worker. His animus towards his father is evident in the video-recordings that are in evidence. This is not a case where it can be said that the only impetus for the killing could be disordered thinking.

86I am satisfied on a balance of probabilities that Mr. Sulaimon Khail, at the time of the offence, had a mental disorder, but I am not satisfied on a balance of probabilities that his mental disorder rendered him incapable of knowing that his actions were wrong. I am unable to accept and rely on the report and evidence of Dr Iosif for reasons previously stated. The evidence that I do accept causes me to conclude that it is more likely than not that when he stabbed his father, Mr. Sulaiman Khail had the capacity to know that society regarded his actions as morally wrong. He did not see his conduct as justified according to the norms of society and did not lack the capacity to assess the wrongness of his conduct against societal norms.

87Accordingly, I find Mr. Sulaimon Khail guilty of second-degree murder.

The Honourable Justice J. Speyer
Released: June 30, 2025

1It is unclear what is meant by Dr. Iosif’s reference “to yourself”.