04/14/2015 02:20 EDT | Updated 06/22/2015 08:59 EDT

Man who nearly decapitated wife appeals conviction, asks for new trial

TORONTO - An Afghan immigrant found guilty of second-degree murder after nearly decapitating his wife is appealing his conviction, arguing the judge who presided over his trial made several errors.

The case of Peer Mohammad Khairi will be heard by Ontario's highest court Wednesday, where his lawyer is expected to ask that a new trial be ordered for the father of six.

"The appellant respectfully requests that the conviction be set aside," lawyer Richard Litkowski wrote in a factum submitted to the Court of Appeal.

If a fresh trial can't be ordered, Khairi's lawyer is asking that the man's period of parole ineligibility — currently set at 15 years after he was sentenced to life in prison — be lowered to 10 or 11 years.

A jury deliberated for three days in 2012 before finding Khairi guilty of second-degree murder in the March 2008 death of his wife.

His lawyer now argues the trial judge erred by not declaring a mistrial after what was allegedly an "improper" opening statement from Crown prosecutors, whose effect was allegedly to prevent Khairi from receiving a fair trial. The prosecution's closing address was inflammatory, Khairi's lawyer argued.

The trial judge then made errors in instructions to the jury on the evidence of a psychiatrist, the issue of the statutory defence of provocation and the jury's ability to accept "some, none or all" of Khairi's evidence, Litkowski claimed.

The Crown is arguing that the appeal should be dismissed.

There were two issues at trial, Khairi's lawyer said — whether Khairi had the requisite intent for murder, as opposed to manslaughter, and whether he committed a crime in the heat of passion caused by a sudden provocation.

Khairi, who was born in Afghanistan, immigrated to Canada with his wife and their six children in 2003 after having spent the previous 15 years in India.

They settled in Toronto but due to their limited education and inability to speak English, neither of them could find work, Khairi's appeal factum notes.

In 2006, the family had financial troubles and the relationship between Khairi and his wife became strained, the document said.

"His wife routinely criticized him for not working and not supporting his family," the factum noted. "She also accused him of having no honour."

The situation worsened and Khairi, who took the stand at his trial, testified he felt his life was not going well.

A psychiatrist said Khairi exhibited symptoms of post traumatic stress disorder, major depressive disorder and some form of personality disorder, Khairi's lawyer said.

Court heard that he tried to commit suicide about six times. It also heard that Khairi's wife had said she wanted to leave him.

Crown prosecutors noted, however, that Khairi disapproved of his children's behaviour as they integrated into Canadian society, but his wife defended them.

"The appellant was verbally abusive," the Crown's reply factum said. "By March 2008 the deceased was fed up...she knew her rights and he resented it."

The sequence of events leading up to the death of Khairi's wife remains in dispute as well.

His lawyer said that on March 18, 2008, Khairi told his wife he was sick and didn't want to fight her.

"His wife kept swearing at him loudly. She told him he was 'honourless,' illiterate and she called him a 'cuckold,'" his lawyer said in the appeal factum. "She also called his mother a 'whore,' and called him a 'pimp.' This made him 'totally mad.'"

Khairi's wife went into the kitchen, grabbed a small knife and came towards her husband, who grabbed the utensil and her throat, the document said.

He then picked up a nearby knife his wife used to cut meat, and slashed her throat and stabbed her repeatedly in the torso, the document said.

Khairi testified that he lost control, and had been thinking of killing himself at the time, not his wife, the document said.

The Crown's theory, however, was that Khairi and his wife argued on that day and he intentionally killed her.

"He pinned her down on the bed and cut her throat," the Crown factum said.