R. v. Khan (M.A.), (2007) 230 O.A.C. 174 (CA)

• Judge: Moldaver, Simmons and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Wednesday October 31, 2007
• Jurisdiction: Ontario
• Citations: (2007), 230 O.A.C. 174 (CA);2007 ONCA 779

R. v. Khan (M.A.) (2007), 230 O.A.C. 174 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. NO.056

Her Majesty the Queen (respondent) v. Muhammad Arsal Khan (appellant)

(C42597)

Her Majesty the Queen (respondent) v. Kaneez Fatima (appellant)

(C43705; 2007 ONCA 779)

Indexed As: R. v. Khan (M.A.)

Ontario Court of Appeal

Moldaver, Simmons and MacFarland, JJ.A.

November 14, 2007.

Summary:

Khan was convicted of first degree murder and Fatima, Kahn's wife, was convicted of second degree murder in the death of Khan's five year old daughter. Khan and Fatima appealed from their convictions. Fatima also sought leave to appeal from her sentence.

The Ontario Court of Appeal dismissed the conviction appeals. The court granted Fatima leave to appeal from her sentence and dismissed the appeal.

Civil Rights - Topic 3138.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to non-jury trial - Khan and Fatima were convicted of the murder of Khan's five year old daughter - They appealed, asserting, inter alia, that the trial judge had erred in refusing to grant their request to be tried by a judge alone, absent the Crown's consent, on the ground that, due to pretrial publicity and potential religious and racial bias, they could not receive a fair jury trial - Khan and Fatima submitted that the trial judge had applied too stringent a test in determining the issue and that the correct test was analogous to the test used in deciding whether a challenge for cause should be granted - The Ontario Court of Appeal dismissed the appeal - An accused seeking a judge alone trial in these circumstances had to, at a minimum, meet the test for a change of venue - Khan and Fatima fell well short of meeting that test - Their right to a fair trial was adequately protected through well-established procedures, including extensive screening of prospective jurors and challenges for cause - See paragraphs 10 to 16.

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - Khan was convicted of the first degree murder of his five year old daughter - He appealed, asserting, inter alia, that the trial judge erred in instructing the jury that it could find first degree murder based on unlawful confinement - The Ontario Court of Appeal dismissed the appeal - There was evidence capable of showing that Khan beat the child into unconsciousness, such that she could not have escaped even if she had wanted to, and that he then slit her throat - This scenario was sufficient to dispose of this ground of appeal - See paragraph 7.

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - Fatima was convicted of the second degree murder of her husband's five year old daughter - She appealed, asserting that the verdict was unreasonable and that the trial judge had erred in putting first degree murder before the jury where there was no evidence on which the jury could find Fatima guilty of that offence - The Ontario Court of Appeal dismissed the appeal - There was ample evidence that Fatima failed to protect the child from a vicious beating which she knew was likely to cause death and that her omission was intentional and designed to enable her husband to murder the child - Further, while the case for first degree murder against Fatima was weak, there was a basis in the evidence for leaving the issue with the jury - Fatima was present when the child was beaten and there was evidence that she knew of the plan to dispose of the body - There was an inference available that, by failing to intercede, she became a party to the husband's planned and deliberate murder - See paragraphs 17 to 19.

Criminal Law - Topic 1268

Murder - General principles - Second degree murder - What constitutes - [See second Criminal Law - Topic 1265.1].

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - Khan was convicted of the first degree murder of his five year old daughter - He appealed, asserting, inter alia, that the verdict of first degree murder based on planning and deliberation was unreasonable - The Ontario Court of Appeal dismissed the appeal - There was ample pre-offence evidence and evidence of post-offence conduct on which the jury could find Khan guilty of first degree murder - Pre-offence evidence included Khan's long-standing animus toward his daughter, his ordering surgical instruments from Pakistan, physical abuse of the child and evidence from which the jury could infer that Khan took steps to isolate the child and preselected at least one burial site - Post-offence conduct included evidence that the body was dismembered and disposed of and Khan's apartment cleaned shortly after the murder, that Khan told the daughter's school authorities that she had returned to Pakistan and that Khan changed his appearance and moved to a new apartment soon after the murder - See paragraphs 3 to 6.

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - [See first Criminal Law - Topic 1265.1].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Khan and Fatima were convicted of the murder of Khan's five year old daughter - They appealed, asserting, inter alia, that the trial judge had erred in failing to instruct the jury that proof beyond a reasonable doubt was a standard of proof much closer to absolute certainty than to proof on a balance of probabilities - The Ontario Court of Appeal dismissed the appeal - The instructions given by the trial judge were clear - There was no realistic possibility that the jury would have misapprehended the standard of proof - See paragraph 9.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - Khan was convicted of the first degree murder of his five year old daughter - He appealed, asserting, inter alia, that the trial judge had erred in admitting evidence of Khan's post-offence conduct for the purpose of determining whether Khan had the requisite degree of culpability - The Ontario Court of Appeal dismissed the appeal - The court noted that there was also evidence of pre-offence conduct that the jury could look to in deciding whether the murder was planned and deliberate - In view of the evidence of preplanning, the trial judge made no error in leaving the post-offence conduct with the jury as evidence from which the jury could infer planning and deliberation - Further, the evidence was compelling and supported an inference of a pre-existing plan to cover up the murder - See paragraphs 3 to 5.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4399.9].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 4399.9].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility (incl. jury recommendation) - Fatima was convicted of the second degree murder of her husband's five year old daughter - She sought leave to appeal from her sentence, asserting that the trial judge had erred in fixing the period of parole ineligibility at 15 years - The Ontario Court of Appeal granted leave to appeal and dismissed the appeal - This was a brutal crime committed on a helpless child, involving a gross breach of trust - Apart from the horrific nature of the crime, Fatima's post-offence conduct was particularly heinous - Standing alone, that warranted a substantial increase in the period of parole ineligibility - The court noted as well that of the ten jurors who made recommendations on parole ineligibility, four recommended 15 years, four recommended 20 years and two recommended 25 years - The message from the jury was clear, reflecting the community's sense of horror and the need to denounce crimes of this nature in the strongest terms - See paragraphs 20 to 21.

Cases Noticed:

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 5].

R. v. Poitras (J.P.) (2002), 154 O.A.C. 25; 57 O.R.(3d) 538 (C.A.), refd to. [para. 5].

R. v. Teske (P.) (2005), 202 O.A.C. 239 (C.A.), refd to. [para. 5].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 9].

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109; 196 C.C.C.(3d) 403 (C.A.), refd to. [para. 9].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 9].

R. v. Henderson (R.) (2001), 145 O.A.C. 150 (C.A.), refd to. [para. 14].

Counsel:

Richard Litkowski, for the appellant, Muhammad Arsal Khan;

Timothy E. Breen, for the appellant, Kaneez Fatima;

Brian McNeely, for the respondent.

These appeals were heard on October 31, 2007, by Moldaver, Simmons and MacFarland, JJ.A., of the Ontario Court of Appeal. The court released the following judgment on November 14, 2007.