COURT FILE NO.: CR-19-30000285

DATE: 20201023

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen

AND: Kiyan Diba

BEFORE: S.F. Dunphy J.

COUNSEL: Beverly Olesko, for the Crown Ariel Herscovitch, for the Defendant

HEARD at Toronto: September 14, 15, 16, 21, 22 and 24, 2020

REASONS FOR JUDGMENT

[1] Shortly before 6:00 a.m. on October 26, 2017, Ms. A.P. was shocked awake from her sleep. Her fiancé, the accused Mr. Kiyan Diba, had pinned her between his knees on the bed. She was lying on her back and he was stabbing her in the throat with a kitchen knife. She somehow kept her cool long enough to fight off her attacker and call police despite suffering multiple grievous stab wounds.

[2] Mr. Diba faces charges of attempted murder (s. 239(1) Criminal Code), aggravated assault (s. 268(2) Criminal Code), assault with a weapon (s. 267(a) Criminal Code) and possession of a weapon for the purpose of committing an offence (s. 88(1) Criminal Code) all arising from this incident. Mr. Diba admits that it was he who stabbed Ms. A.P. but says that he remembers few of the details of what occurred that morning and none from the time of the stabbing. He denies that these actions were performed by him while he was his conscious self. Dr. Gojer, the expert witness who testified on his behalf, says that he suffered from a transient psychotic episode. The defence asks me to find that he is not criminally responsible (or “NCR”) for his actions that morning.

[3] For the reasons that follow, I find that Mr. Diba has failed to establish the facts required by s. 16 of the Criminal Code necessary to support a finding that he was not criminally responsible for his actions. I do not accept his evidence of having blacked out during the attack or his other testimony regarding prior potentially psychotic episodes none of which emerged in any detail until long after the events. Dr. Gojer has relied upon facts quite different from those that I have found to the point where I cannot safely rely upon his opinion.

[4] The evidence I do accept is all consistent with the event being the result of a volcanic outburst of repressed jealousy rather than a single, never repeated episode of psychotic behaviour. I find that Mr. Diba knew what he was doing, clearly explaining what he was doing and why he was doing it. I further find that Mr. Diba’s words and actions during the attack establish without doubt his specific intent to kill her when he stabbed her repeatedly and said that she needed to die. Finally, I find that he possessed the knife for a purpose dangerous to the public peace and for the purpose of committing an offence.

Background facts

Events prior to the incident

[5] At the time of the incident, Ms. A.P. was 27 years of age and living on a disability allowance while Mr. Diba was 34 years of age and a part-time security guard. He had not worked in the two weeks prior to the incident while waiting for a new assignment.

[6] They met in or about January 2017 when both were participants in the “STAR” program, a program administered by St. Michael’s Hospital focused on assisting people struggling with homelessness. The two became romantically involved after a short while and ultimately agreed to live together at Ms. A.P.’s bachelor apartment in Scarborough as soon as she came into possession of it. Mr. Diba moved in with her on or about September 1, 2017.

[7] Ms. A.P. testified that the relationship between the two of them had become somewhat strained for about one month prior to the incident. Mr. Diba appeared more withdrawn, less “dovey” and did not seem to be the happy person she had known before then. She attributed this change to Mr. Diba becoming convinced that she had cheated on him.

[8] Ms. A.P. had an intimate relationship with a man named David years prior to meeting Mr. Diba. She was still on friendly terms with David and it so happened that David resided in the same building that housed the STAR program where she also met Mr. Diba. Mr. Diba learned of this prior relationship and asked her questions about it on more than one occasion in a manner that caused her to believe he suspected her of cheating. Nevertheless, she agreed that her impressions were not explicitly confirmed by Mr. Diba who, she said “never fully accused” her of cheating on him.

[9] She described an incident in the same time frame where Mr. Diba had left the apartment for about a week and then came back without warning explaining only that he had “needed some space” after an argument. She said that the two had been fighting about something immediately before his departure. She explained his departure saying that he was “not the fighting type” and that he tended to be quiet. She also admitted that the trauma of the incident has caused her to shut many memories of Mr. Diba out of her mind, leaving her unable to recall some things from that period of her life.

[10] Mr. Diba’s account of these events is slightly different but largely confirmatory of hers. The couple, he said, had a few arguments but “nothing serious”. He mentioned that he had a fight with Ms. A.P. about a month prior to the incident. While he was working the night shift, Ms. A.P. had gone to visit a girlfriend of hers who lived in the same building as David. He said that he had “suspicions” about Ms. A.P. and David but never thought she had cheated on him because she had clarified the matter when he spoke to her about it. Nevertheless, the incident upset him to the point that he said he left the house and did not return until the next day.

[11] There is little real contradiction between the two versions of what is clearly the same event. Ms. A.P. thought Mr. Diba was gone a week; he said that it was only a day. Nothing turns on the precise span of time that he was gone. It was a serious enough dispute that he left his residence for at least a day, possibly more. Mr. Diba admits that jealousy or some emotion very close to it had been the catalyst for this dispute. On this occasion at least, he dealt with his feelings by withdrawing – be it for a day or a week.

[12] Where the two accounts of this incident differ most crucially is in their assessments of the aftermath. Mr. Diba said that he was fully satisfied with her explanation to him and that he never thought she had cheated on him. He denies to the present time that he believed she had cheated on him. Ms. A.P. views things differently. She says that he appeared to her be dwelling on it up until the time of the incident even if he never admitted as much to her or accused her outright. Things were different between them afterwards.

[13] I accept her characterization of the events. Mr. Diba’s behaviour when he walked out indicates that he had not accepted her denials at face value but needed to take some time, be it to calm down, process his feelings or otherwise. In other words, he sought to avoid confronting her further on the subject at that time. Her evidence indicates however that the question continued to gnaw at Mr. Diba over the days and weeks that followed. Indeed, the events of October 26, 2017 show that Mr. Diba allowed his suspicions to simmer and stew beneath the surface until a volcanic explosion erupted.

[14] Despite her trauma-damaged memory, I found that Ms. A.P. was unquestionably sincere when she testified before me. Sincerity and reliability are not necessarily the same quality. Ms. A.P. frankly admitted the existence of gaps in her memory of traumatic events that she is trying to forget. She could not, for example, remember the subject-matter of the fight that resulted in Mr. Diba walking out for a time. All necessary allowances being made for possible confusion about details or the precise order in which confusing events occurred, she was also quite reliable. She tried her best to answer questions, readily agreed with some things and candidly admitted complete lack of memory of others all without any apparent calculation about what might cast her or Mr. Diba in a better or worse light. She answered questions in chief and under cross-examination quite even-handedly showing no sign of having her “back up” under cross-examination. When shown possible contradictions from her preliminary inquiry testimony or her statement to police, she carefully consulted her memory and indicated where her memory had been refreshed and where she simply had nothing to go on beyond an assurance that she was trying to be honest on the earlier occasions as well.

[15] As I shall discuss at greater length below, I had considerable difficulty in conceding any credibility to Mr. Diba as regards his accounts of the incident itself, including his alleged lack of memory of it, or as regards matters going to his state of mind or mental health at that time or in the days and weeks that preceded it. His placid assertions of lack of jealousy after that initial incident when he walked out ring entirely false.

Mr. Diba’s prior history and mental state in the period prior to the incident

[16] Mr. Diba was able to give only a very vague account of possible mental health-related symptoms he experienced in the period prior to the incident. He described several potentially relevant symptoms: struggles with depression and anxiety, two “mental breakdowns”, instances of hearing voices in his head, a nightmare, instances of seeing shadows and instances of seeing a strange white light. With the exception of the depression and anxiety condition, none of these symptoms were discussed with anyone in any material level of detail prior to the incident or until long afterwards.

[17] Before leaving this last observation, I wish to refer to two aspects of the evidence that have bearing upon it. Ms. A.P. had a “vague memory” of Mr. Diba mentioning something about hallucinating perhaps a month prior to the incident, something she believes he told her when he was drunk, quite possibly at the time they had the argument when Mr. Diba walked out. What he allegedly hallucinated or for how long is not known. Mr. Diba himself denied telling her anything about his alleged hallucinations for fear of being perceived as weird. Officer Woodyer recalled that Mr. Diba told him that he had not slept and had been hallucinating for four days while he was arresting him outside the apartment door a few minutes after the incident. Mr. Diba gave no details of those hallucinations to him and there is no evidence that he gave such details to anyone else even if he did see a psychiatrist later that day as a result of suicidal thoughts that he expressed post-incident. At trial he admitted that while he may have tossed and turned a lot in the nights prior to the incident, he had slept. He also admitted that he had not had any hallucinations or heard any voices for at least a couple of days prior to the incident. I do not view the testimony of either Ms. A.P. or Officer Woodyer as offering material corroboration of the evidence of hallucination and voices reported by Mr. Diba to Dr. Gojer or repeated in his testimony before me.

[18] Neither Mr. Diba nor Dr. Gojer sought to draw any material connection between the conditions of depression and anxiety that he said he suffered from and the mental disorder that Mr. Diba is alleged to have been afflicted with on the morning of October 26, 2017. It is sufficient to note that Mr. Diba consulted a family doctor about depression in early 2017 and was prescribed an unknown medication in an unknown dose that he voluntarily ceased to take after a few months (and months prior to the incident) without any medical follow-up. While in custody, Mr. Diba was again prescribed medication for this condition and again elected not to continue taking the medication after a while, again without medical follow-up. I attach very little weight to this evidence in considering the question of the existence of an operative mental disorder during the early morning of October 26, 2017.

[19] Mr. Diba described experiencing what he called “mental breakdowns” on perhaps two occasions, the first approximately one month prior to the incident and the second about a week after the first. When asked to describe these symptoms more closely, he said that his body just “shut down” and he “couldn’t move properly”. He described being unable to put tin foil on a baking sheet when this first occurred. He agreed that the symptoms were more associated with his motor functions than his brain. He did not report these occurrences to anybody at the time and went to work as usual. Later on, he appeared to associate these incidents with what he described as demonic attacks, but it appears quite likely to me that this later description is a projection back in time of thoughts he has had about the matter while in custody and after having experienced what he described as a revelation from the Holy Spirit (about which I shall have more to say below).

[20] A few days before the incident, Mr. Diba said that he had a nightmare and that he also heard voices saying, “we’re going to get you”. He heard these voices a couple of times throughout that day and he heard the voices over a span of a couple of days ending three or four days before the incident. He did not hear any voices on the day of the incident nor since. He did not know who the voices were supposed to be.

[21] Mr. Diba said that he had a nightmare about a cat being stabbed a couple of days prior to the incident. He told nobody about this at the time.

[22] He described seeing strange dark shadows moving around coming in and going out of the apartment. He was unable to describe what it was about these shadows that he thought was unusual. He did state that he thought he was hallucinating at the time he saw them. However, he told nobody about these shadows at the time. He did not see any shadows in the day or two prior to the incident nor on the day of the incident. He did not report them to anyone until afterwards. He was unable to be more precise about when he had this experience.

[23] Mr. Diba described seeing what he called flashes of “white light” from the window area on a couple of occasions. He agreed that this could have been light reflecting off something outside. He similarly made no mention of this experience to anyone at the time or prior to the incident.

Mental health issues during detention

[24] Mr. Diba has been in detention on these charges since the time of his arrest on October 26, 2017. He was cross-examined about what treatments he has been receiving during his time in custody. He has not received any anti-psychotic medication, his only mental health issues post-detention relating to treatment for anxiety and depression that he voluntarily discontinued and treatment for trouble sleeping that he also voluntarily discontinued.

[25] While Mr. Diba appears to have received only a very minor amount of medical attention for any issues related to his mental health since his detention, he did recount a number of incidents with some parallels to the incidents described by him in the period prior to the incident but for which no medical or professional help was sought.

[26] During the winter of 2018, Mr. Diba said that he received a revelation from the Holy Spirit that he had been the victim of a demonic spiritual attack. He explained that somebody had committed suicide in the apartment building and that the Holy Spirit revealed to him that “basically I got possessed by the evil spirit that was in that apartment”. He attributed the dark shadow and the mental breakdowns he experienced prior to the incident to this evil spirit.

[27] The following year, he had another religious experience, also while in custody. While looking at the night sky, he saw a white light hit a star. He then had a vision of the Sacred Heart of Jesus.

[28] I make no findings whatsoever regarding the religious experiences recounted by Mr. Diba that happened while he was in custody. Intense experiences of religious ecstasy occur and are not the stuff of science nor of the arid world of courts and judicial findings of fact. There seems little doubt that Mr. Diba’s faith is a very important part of his life these days at least and it appears to have a positive impact upon him.

[29] Without intending to cast any doubt on the sincerity of Mr. Diba’s accounts of the religious experiences he described, I must consider what findings I am able to make about his evidence of potential mental health-related symptoms in the period leading up to the incident. Having considered his testimony carefully, I find that I can attach very little weight to his utterly uncorroborated accounts of nightmares, mental breakdowns, voices, strange shadows or white lights that he said he experienced in the time frame prior to the incident. He mentioned them to nobody at the time nor is there any evidence that he made any mention of them until he saw the defence expert, Dr. Gojer, in 2019. It seems clear to me that Mr. Diba’s subsequent conviction, arrived at in 2018, that demons were responsible for what happened in October 2017 has impacted his own memory of those events in a fundamental way if indeed he has not consciously fabricated or exaggerated some or all of this evidence. I shall return to that question below.

The day of the incident

[30] Mr. Diba said that he had trouble sleeping for a couple of days prior to the incident, experiencing a lot of tossing and turning. He did not mention this to Ms. A.P. at the time. He also agreed that he woke up in the morning which suggests that he did get some sleep, even if fitful.

[31] Ms. A.P. had little to no independent recollection of the events of that day. She remembered her routine generally and was able to agree that she was trying to tell the truth when she was examined on these matters at the preliminary inquiry or in her recorded police statement. However, she simply did not remember much and her memory was not refreshed by being shown the transcript of her earlier testimony.

[32] Mr. Diba provided a very detailed account of the day. He said that the two were home for most of the day. He had been off work for about two weeks and his employer was still looking for a new placement for him to work as a security guard. In the afternoon, Ms. A.P. left the apartment to visit a friend. Later, he went out for a walk and to get a coffee.

[33] Upon returning to the apartment he watched TV until Mr. Benton came by for a visit. Mr. Benton lived in an apartment just down the hall and was a friend of Ms. A.P. for some time. Mr. Benton invited him over to his own apartment to hang out. He agreed to do so and left around 6:30 p.m.

[34] While at Mr. Benton’s apartment, Mr. Diba drank two or three shots of rum. He also shared a joint with Mr. Benton that he estimated at about one gram of marijuana. Mr. Diba said that he generally smoked about 1-2 grams of marijuana daily.

[35] After about an hour, Mr. Diba phoned Ms. A.P. to let her know where he was. He said that she was upset with him for drinking and taking testosterone pills before he had eaten. Dr. Gojer drew no link between the events of the following morning and the taking of testosterone pills nor do I. At all events, Mr. Diba said that she agreed to come over to Mr. Benton’s place as soon as she got back. She arrived there at about 8:30 p.m. and the three of them shared another joint of similar size. After hanging out with Mr. Benton for about an hour, the couple returned alone to their apartment down the hall.

[36] Back at their own apartment, Mr. Diba said that Ms. A.P. wanted more marijuana and sent him off to try to get some for her. He was not successful and reported this to her. Ms. A.P. then went off on her own to find some marijuana, returning after about twenty minutes having managed to acquire some. The two of them shared another joint, also about 1 gram in size. They watched TV together for a while. He gave her a massage and then they went to bed somewhere around 12:30 or 1 a.m.

[37] Mr. Diba’s account quite closely matches Ms. A.P.’s testimony regarding the events of that night given at the preliminary inquiry and read in at trial. As mentioned earlier, Ms. A.P. was able to recall few of these details on the stand at trial. She remembered being at Mr. Benton’s apartment and thought they must have both gone there together; she didn’t know if they smoked some marijuana before going to bed but surmised that they had because this was part of her routine.

[38] She did retain a couple of impressions from the evening before the incident. She remembered Mr. Diba at Mr. Benton’s place appearing to be happy but quiet. He seemed inebriated to her, also using phrases such as “spaced” and “lost” to describe his appearance to her that night.

Circumstances of the attack

[39] There is no significant dispute regarding any of the facts relating to the attack on Ms. A.P. that took place on the morning of October 26, 2017. The parties have filed an Agreed Statement of Facts that includes the following admissions:

a. Mr. Diba is the person who stabbed Ms. A.P.;

b. Ms. A.P. was admitted to hospital that day and discharged four days later on October 29, 2017;

c. Her injuries included:

i. four stab wounds to her chest and an apical pneumothorax (collapsed lung) secondary to the chest stab wound;

ii. four right arm stab wounds;

iii. one left hand stab wound;

iv. one left leg stab wound;

v. a left depressed orbital fracture; and

vi. a right medial orbital wall fracture.

[40] The two wounds to her eye were the result of stab wounds described by Ms. A.P. during her testimony. In total, Ms. A.P. was thus stabbed by Mr. Diba approximately twelve times. In addition to the stab wounds, there were various lacerations, including one on her neck. The bulk of these injuries are depicted in the photographs taken a few hours after the attack that were marked as exhibits at the trial.

[41] The blade of the knife used in the attack was approximately seven inches in length and about one and one-half inches in width at its widest part (tapering to a sharp tip). The photograph of it taken after the incident showed it to be caked with blood.

[42] Ms. A.P. recounted the events of that morning to the best of her ability. While it is possible that she may have remembered some things out of their true order or that her sense of time may be off to some degree with the passage of time, I accept her testimony in its broad lines as an accurate picture of what occurred.

[43] Ms. A.P. recalls waking up lying on her bed on her back. Mr. Diba was straddling her chest with his knees on both sides squeezing her in. He was swinging a knife in the air that she felt stab her in the throat. When he saw her eyes open, he began crying and said that God had come to him in a dream and told him that she had cheated on him, that she had sinned and that she had to die. He repeated this several times while continuing to stab her.

[44] She fought back. She managed to bring her legs up in the air and get him in a head lock, locking her feet over his chest and then throwing him off of her to the point where he fell off the foot of the bed. She then rolled over and dialed 911 on the phone beside her bed.

[45] While she was phoning 911 with her left arm, Mr. Diba returned and began stabbing her right arm which was exposed. Once she had 911 on the phone, she said that she ran for the front door. The apartment was a small bachelor apartment with the front door being at the end of a short corridor in the far corner of the room that also contained a small kitchen and eating area. She managed to unlock the front door and to start to open it when Mr. Diba grabbed her. He pulled her by her hair and swung her into the bathroom (whose doorway is also in the same small corridor). She landed on her backside in the bathtub just inside the bathroom door. Meanwhile, Mr. Diba closed and locked the apartment door and returned to resume his attack.

[46] He attempted to stab her in the face. She moved her left hand to block the blow. The knife went through her left hand and into her eye. She pulled the knife out of her left hand and snapped the handle off the knife in the process. She tossed the knife away and proceeded to use her legs to place his right arm in a wrestling lock she called an “arm bar”. She pulled his right arm in this fashion until she thought she heard a pop.

[47] When Mr. Diba saw her remove the knife from her own hand and break it, she said that his eyes widened in apparent shock and terror. He retrieved the blade from the floor where she had thrown it and proceeded to back out of the doorway, waving the knife blade in front of him as he went. When he was out the door, she closed and locked the door.

[48] She remembers little beyond this. She recalls attempting to cross the room but collapsing on the floor before she got there. She recalled hearing the police arrive outside the door. Her next memory was being in the ambulance.

Time of the attack

[49] Before proceeding to review Mr. Diba’s account of the events, I shall consider briefly the question of differing accounts as to the time of events.

[50] Officer Woodyer indicated that the 911 call that he was responding to came in at 6:00 a.m. whereas Ms. A.P. remembered calling 911 at 5:26 a.m. She was not examined or cross-examined on why she had such a precise time in mind. She remembered calling while the attack was on-going. Her account of rolling over and dialing while being stabbed in the right arm is consistent with her wounds (she suffered multiple stab wounds to her right arm) and with the photographs of the blood stains on the bed. Mr. Diba said that he could hear her calling police while he was standing outside the apartment door and he also said that he had seen clocks inside the apartment reading 6:00 a.m. Conversely, Ms. A.P. had no memory of speaking to the 911 operator after Mr. Diba has been locked out of the unit. There is thus something of a conflict between the two accounts as regards timing.

[51] It is quite unlikely that the attack Ms. A.P. described lasted longer than a relatively few minutes and she freely admitted to gaps in her memory as she has tried to put as much of this as possible out of her mind. She may have thought that she had called 911 when she rolled over and dialed but failed to get a connection; Mr. Diba may have hung up the phone before it connected. She may have phoned a second time after Mr. Diba was safely locked outside the apartment door or the call may have been connected the whole time. While she remembered little to nothing of what happened after Mr. Diba was locked outside of the apartment when she testified, she was still conscious when police broke down the door and entered shortly after 6:07 a.m. and could certainly have dialed 911 after Mr. Diba left the room. Neither Crown nor defence sought to introduce the actual 911 call into evidence.

[52] I find that the times given by the police officers who record such times in their notes as a matter of training to be the most reliable in these circumstances. I therefore conclude that the stabbing attack began a very few minutes before 6:00 a.m. and had already concluded by the time Ms. A.P. spoke to a 911 dispatcher at or about 6:00 a.m. and that Mr. Diba had already been locked outside of the apartment door when that conversation occurred. I also accept that she tried to call 911 a few minutes before 6:00 a.m. and thought she had gotten through. At all events she called – for the first time or the second – at approximately 6:00 a.m. as Officer Woodyer testified.

Mr. Diba’s memory of the stabbing

[53] Mr. Diba testified that he had essentially no memory of the events surrounding the attack even if he said that he had a clear memory of the events of the prior day. He admitted telling police immediately afterwards that he could remember nothing beyond waking up at around 6:00 a.m. and standing in the corridor seeing police arrive. However, he said that his memory improved while in custody to a degree and that he was able to provide additional details when he testified at trial that he had not volunteered in 2017.

[54] Officer’s Woodyer’s testimony – that I have accepted – is that the 911 call was placed at 6:00 a.m. and that he and his partner arrived at 6:07 a.m. It is unclear whether this was the time the car pulled up in front of the building or the time when the two officers emerged from the elevator and turned the corner into the corridor containing Ms. A.P.’s apartment – nothing turns on an additional two minutes that may need to be added to the timeline. Mr. Diba’s claim to having woken up at 6:00 a.m. and noticing the time leads to the inference that his claim is that he woke up after the attack was over when he was standing in the hallway prior to the arrival of police.

[55] The following additional details were given at trial that Mr. Diba said returned to his memory in the time following the incident. Mr. Diba said that the first thing he remembered was Ms. A.P. saying “why are you doing this, you were the sweetest guy ever”. He then remembered “tussling” with her over a knife and pulling it away from her with both of his hands. He demonstrated how he did this putting his palms and extended fingers together in the manner of praying and pulling towards himself. He said that the cuts he later discovered on his hands came from doing this. He could not remember how the knife blade broke from the hilt nor did he recall picking up the knife or blade from the floor.

[56] He also remembered leaving the apartment and standing outside. He remembered seeing the clock in the kitchen and on the TV reading 6:00 a.m. and believes that he noticed this before he began “tussling” with Ms. A.P. over a knife. He said that he heard the deadbolt close when she locked the door behind him and he heard her give out her address to police on the phone through the door. He remembered standing outside the door for a time but could not say how long. He remembered police arriving, handcuffing, and arresting him. He was not immediately conscious of the cuts to his hand until a few minutes after he was handcuffed and was asked whether he was injured. Although he saw Ms. A.P. being taken away on a stretcher, he did not realize what had happened to her until he was told later that day in hospital after “the shock wore off” and was filled with remorse. He remembered speaking with duty counsel and with police and was generally aware of what was going on by that time.

Arrest of Mr. Diba

[57] Officer Gabbidon and Officer Woodyer arrived on the scene at 6:07 a.m. Their evidence was not subject to any material dispute and was confirmed in its main points by Mr. Diba whose recall of those events at least was relatively clear.

[58] As the police officers came around the corner of the apartment corridor leading to Ms. A.P.’s unit, they observed Mr. Diba standing outside the door of the apartment. He was barefoot and clothed only in his underwear. Blood was visible on the walls and floor. He was holding a knife in his right hand. Upon seeing the approaching officers, he switched the knife to his left hand. He was commanded to drop the knife. After a moment’s hesitation, he complied. He was ordered to get down to his knees, then to lie on the ground and put his hands behind his back. He complied without resistance to each of these commands and was handcuffed and brought back to his feet.

[59] Officer Gabbidon identified himself as a police officer through the apartment door and could hear Ms. A.P. inside the apartment saying that she could not move. The door was locked and there was smeared blood visible on the scene. Leaving Mr. Diba in the custody of Officer Woodyer, Officer Gabbidon defeated the lock by kicking the door open. Inside the apartment he could see a considerable amount of blood and Ms. A.P. was lying on the floor. He could see the telephone on the nightstand and could hear what he took to be police dispatch talking. He rendered assistance to Ms. A.P. using a nearby sweater to staunch some bleeding. She was conscious but obviously severely wounded. He observed the knife handle lying there – a fact he connected to the knife blade Mr. Diba was observed holding because that knife blade had no handle. Ambulance attendants were on the scene within a few minutes and took her off to the hospital for treatment.

[60] Mr. Diba was bleeding from cuts to his hand. An ambulance was summoned for him as well. Officer Woodyer read him his rights to counsel and Mr. Diba confirmed that he understood. At Mr. Diba’s request, Officer Gabbidon returned to the apartment to retrieve his health card. It is likely that he also got a shirt for Mr. Diba at this time as well as he had a shirt on by the time he was admitted to hospital for treatment.

[61] Neither police officer reported noting any confusion or lack of comprehension on Mr. Diba’s part during this initial confrontation with him minutes after the stabbing. He appeared to understand what was being told to him. Mr. Diba was also quite clear and coherent when he was processed at the station by the booking sergeant. He answered routine questions without difficulty.

Issues to be resolved

[62] Mr. Diba is charged with attempted murder, aggravated assault, assault with a weapon and possession of a weapon for a dangerous purpose. The second and third charges are included offences of the first. There is no serious question regarding the physical elements of each of these offences. The evidence is overwhelming and the important elements have largely been admitted.

[63] Mr. Diba admits to having stabbed Ms. A.P. and the agreed facts include an admission as to the number and location of the stab wounds that resulted. Those admissions when added to the evidence of Ms. A.P. regarding her wounds, the photographs of those wounds and of the apartment as well as the evidence of Officers Woodyer and Gabbidon who arrived on the scene amply establish beyond a reasonable doubt that the admitted stabbing took place using the knife the Officers described and that was later photographed, that Mr. Diba had possession of the knife whose broken-off hilt was found inside the apartment and that the result of the repeated stabbing of Ms. A.P. was a series of wounds that caused serious bodily harm to Ms. A.P. and could indeed have killed her quite easily but for her active resistance to the assault.

[64] The contest between Crown and defence concerns the questions of the existence of an operative mental disorder at the relevant time and of the existence and nature of the intent of the accused at the relevant time. The issues to be resolved may thus be summarized as follows:

(a) Did Mr. Diba suffer from a mental disorder at the time of the attack that rendered him incapable of appreciating the nature and quality of his actions or of knowing they were wrong? If not,

(b) Did Mr. Diba intend to kill Ms. A.P. when he stabbed her?

(c) Did Mr. Diba possess the knife for a purpose dangerous to the public peace or for the purpose of committing an offence?

Analysis and Discussion

(a) Did Mr. Diba suffer from a mental disorder at the time of the attack that rendered him incapable of appreciating the nature and quality of his actions or of knowing they were wrong?

[65] The defence urged me to find that Mr. Diba was suffering from a mental disorder at the time he stabbed Ms. A.P. that rendered him incapable of appreciating the nature and quality of his actions or of knowing they were wrong. As such, I was urged to find that Mr. Diba is not criminally responsible for his actions pursuant to s. 16(1) of the Criminal Code.

[66] Section 16(2) of the Criminal Code provides that every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved on the balance of probabilities and s. 16(3) thereof places the burden of proving the existence of such a mental disorder upon the person raising the issue – in this case, the defence.

[67] The following general principles applicable to the s. 16 Criminal Code inquiry appear to me to be the most applicable to the circumstances of this case:

a. “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.”: R. v. Oommen, [1994] 2. S.C.R. 507 at p. 518;

b. “[T]he real question is 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.”: Oommen at p. 520

c. Not every mental disorder, even if delusion-driven, will trigger a s. 16 defence. The concept of “wrong” embedded in s. 16 contemplates knowledge, despite the disorder, that an act was morally wrong “according to the ordinary moral standards of reasonable members of the community”: R. v. Richmond, 2016 ONCA 134 at para. 54.

[68] In support of its NCR defence, the defence called Dr. Gojer whose evidence I shall review in further detail below. The Crown did not call its own expert and urged me to find that the evidence viewed as a whole does not support a finding of NCR.

(i) Expert Evidence of Dr. Gojer

[69] Dr. Gojer was called by the defence as an expert in the field of forensic psychiatry to provide opinion evidence regarding the mental state of the accused at the time of the offence. His qualifications were admitted on consent and I shall not repeat them here.

[70] Dr. Gojer performed what might be termed a file review relating to Mr. Diba, reviewing the disclosure file received by defence counsel, transcripts of the preliminary inquiry and transcripts of the testimony of Ms. A. P. at trial. In addition to these sources, he interviewed Mr. Diba on three separate occasions (September and November 2019 and a follow-up interview during the trial (on the day prior to Mr. Diba’s testimony). Finally, he reached out to Mr. Diba’s father (from whom he is estranged) and managed to hold a brief telephone meeting with him that was cut off after a short while for reasons unknown.

[71] Dr. Gojer concluded that at the time of the offence, Mr. Diba was in a psychotic state that left him out of touch with reality. Psychosis is a major mental disorder. Where, as here, the disorder or illness that was the cause of the psychotic state cannot be determined with precision, he said that his diagnosis would be one of “Psychosis Not Otherwise Specified”. The condition that produced the psychotic state at the time of the offence was one that he said abated shortly thereafter with Mr. Diba progressively recovering his faculties. It was thus a “brief transient psychotic episode”. In his opinion, it would not be unusual that a person who has suffered such an episode should have presented to police only a few minutes later as quite responsive and rational, that such a person should have no memory of what occurred during some or all of the psychotic episode or that some of those memories should subsequently return.

[72] According to Dr. Gojer, since Mr. Diba has no memory of the events that occurred during the time when he was attacking Ms. A.P., clues as to his mental state at the time must be found elsewhere. In this regard, he said that he placed great weight upon the testimony of Ms. A.P, testimony he viewed as providing some insights into Mr. Diba’s mental processes before and during the attack. He understood Ms. A.P.’s evidence to be that Mr. Diba told her that God came to him in a dream and asked him to kill her because she was cheating on him. This belief, he said, has the quality of a delusional belief. He connected this with other things reported by Mr. Diba, and with observations by police as far back as 2010 of behaviour of a possibly psychotic nature and Mr. Diba’s self-reported observations of unusual psychotic symptoms after the offence all of which provide “indicia that something is not right”.

[73] The event, in the opinion of Dr. Gojer, has all the hallmarks of a drug-induced state given the evidence of cannabis use but there may also be some connection to unusual behaviours reported both pre-offence and post-offence, which observation led him to conclude that the psychosis was “psychosis not otherwise specified” even if drug induced psychosis is a strong possibility as well. In either case, Dr. Gojer said, Mr. Diba was in the throes of a psychotic illness at the time of the events in question.

[74] Dr. Gojer described Mr. Diba’s actions at the time of the attack as being “as if he snapped”. Mr. Diba said he could not recall what he was thinking or what happened. If he were faking, Dr. Gojer suggested, he could have come up with a more helpful story. He might have said that he had heard voices that day as well and not merely several days beforehand. The fact that the evidence of a psychotic state is coming from a third person is significant in Dr. Gojer’s view. His actions and behaviour were so bizarre in Dr. Gojer’s view that he could not be viewed as acting rationally with the ability to appreciate what he was doing: “he’s in an altered state and he’s terrified”. In that state, Dr. Gojer concluded, it is highly unlikely that he could assess the wrongfulness of his actions.

[75] What use can or should I make of Dr. Gojer’s opinion? Taken at face value it satisfies the requirements of s. 16 of the Criminal Code. He concluded that Mr. Diba was subject to a major disorder being the transient psychotic state he diagnosed and that in that state, he was out of touch with reality and unable to assess his actions in terms of whether they were wrong. The Crown did not call its own expert and Dr. Gojer’s evidence is, accordingly, the only expert evidence I have before me regarding the mental state of Mr. Diba at the time of the attack.

[76] The principles I glean from the case law presented by the parties regarding the use to be made of expert evidence in these circumstances are neither novel nor controversial. The expert witness is like any other witness – I may accept or reject some or all of the evidence of such a witness. I am neither to accept it uncritically nor reject it capriciously. As well, the expert is not the trier of fact. In this case, I am. The usefulness of an expert’s opinion cannot be divorced from the facts on which it is founded. The greater the co-relation between the facts assumed or relied upon by the expert and the facts as determined by the trier of fact, the greater the potential usefulness of the expert report. However, even with identical facts, the trier of fact is not bound by an expert opinion but must of course examine it carefully and if the trier of fact is a judge, reasons must be given to explain the thought process that led to accepting or rejecting the opinion in whole or in part.

[77] In the present case, there are very significant differences between the facts as I find them and the ones that underpin Dr. Gojer’s expert opinion. These differences reduce to a very considerable degree the weight that I can attribute to Dr. Gojer’s opinion on the key issues before me. In the end, I found I could attach no material weight to his views at all.

[78] Some of the more significant facts relied upon by Dr. Gojer that differ from those that I have found after my review of the evidence are summarized below. I have not attempted to prepare an exhaustive list. There was a sufficiently large gap between Dr. Gojer’s description of the facts that he based his opinion upon and the ones that I find adequately supported by the evidence that I ultimately found I could place no faith in his conclusions. Among the main discrepancies:

a. Mr. Diba was suffering from “delusions” of infidelity. Dr. Gojer considered that Mr. Diba was operating under a delusional belief in the infidelity of Ms. A.P. which delusion represented a distinct break in behaviour. He based this conclusion on what he took to be Ms. A.P.’s testimony that she had been with Mr. Diba “24/7”, and what he understood to be Ms. A.P.’s evidence that Mr. Diba’ suspicions of her infidelity had been cleared up to Mr. Diba’s satisfaction after a discussion that occurred several weeks before the incident. He also assumed that the alleged other man (David) lived in the same building as the couple.

Each of these conclusions of Dr. Gojer is quite opposite to the facts that I have found. David lived in the Christian Resource Centre where the STAR program is housed – several miles from the Scarborough apartment the couple shared. Ms. A.P. was not with Mr. Diba “24/7” in the time frame prior to the incident – she regularly attended programming, he went to work and indeed she was out alone visiting a friend for several hours the afternoon prior to the incident. Ms. A.P. agreed that Mr. Diba had not explicitly accused her of cheating but she certainly did not think her explanations regarding her history with David had cleared up his concerns of infidelity. To the contrary, she viewed her relationship with Mr. Diba as having been adversely affected by his belief that she had cheated on him and this was reflected in his changed behaviour in the month prior to the incident.

Dr. Gojer characterized Mr. Diba’s accusation of infidelity during the incident as obviously delusional or as evidence of a break quite out of keeping with the context of their relationship as reported by Ms. A.P. That is not a conclusion that I am able to agree with. Mr. Diba’s concerns about the possibility that Ms. A.P. was cheating on him had been bothering him for several weeks before the incident and this concern was continuing to produce noticeable impacts upon their relationship.

b. Staying at the scene for seven minutes. Dr. Gojer viewed the fact that Mr. Diba remained outside the apartment door holding the knife for seven minutes until police arrived to arrest him as evidence corroborating his diagnosis that Mr. Diba was in a psychotic state immediately before this from which he was only gradually emerging. There is no question that Mr. Diba stayed outside of the apartment door for approximately seven minutes before police arrived without attempting to flee the scene. The inference made by Dr. Gojer that this behaviour is evidence of someone emerging from the fog of a psychotic state is possible but by no means necessary.

Mr. Diba was standing outside the door of his apartment dressed only in his underwear, bleeding from cuts to his hand and wearing no shoes in late October. He knew his fiancé, whom he had just stabbed multiple times, was still alive, had called police and locked him out of the apartment where his clothes and shoes were to be found. His behaviour confronted with those facts is quite consistent with the conclusion that he had nowhere to go dressed as he was at that time of year and that he rationally recognized that fleeing from the police at this point would be futile. This latter interpretation is consistent with all of the evidence, including Mr. Diba’s responsive and rational state in dealing with police officers and others in the minutes and hours that followed.

c. Connection with police reports as far back as 2010. Dr. Gojer referenced certain police reports regarding prior arrests of Mr. Diba that did not result in charges being pursued and that are not themselves in evidence at this trial. While he said that he gave such evidence relatively low weight at one point, he also referenced this as something that “seemed to connect” with his diagnosis and even if not directly connected as offering “some evidence of mental instability”.

A single, un-explored comment of possible mental health issues in a police synopsis prepared almost a decade in the past that is not in evidence at trial provides no useful corroboration of Dr. Gojer’s diagnosis regarding Mr. Diba’s mental state at the time of the offence. If Dr. Gojer afforded this as little weight as he said, it is hard to understand why he found it necessary to repeat it before me as many times as he did. At all events, I give no weight to this evidence whatsoever in answering the questions raised pursuant to s. 16 of the Criminal Code.

d. Evidence of people following him or reading his mind: Dr. Gojer said that Mr. Diba’s report to him of a belief that people were following him or reading his mind in the time prior to the incident was confirmatory of his diagnosis to a degree. He did not testify to this in the same way at trial and I can give no weight to this untested, self-reported allegation made so long after the fact. As I shall discuss further below, I view all of Mr. Diba’s descriptions of matters pertaining to his mental state as being highly dubious given that nearly all of them were first reported to a third person many months after the incident and subject to very strong suspicions of either ex post facto fabrication, self-justifying rearward projections long after the fact or a combination of both.

e. Evidence of demeanor: Dr. Gojer interpreted Ms. A.P.’s evidence regarding Mr. Diba’s demeanor during the attack as confirming that Mr. Diba was in an “altered state” at the time of the attack. He characterized her evidence as being that Mr. Diba was in a terrified state and looked “glossy eyed” or “glassy eyed”. My findings regarding Mr. Diba’s demeanor during the attack are quite different from those reached by Dr. Gojer.

Ms. A.P. described Mr. Diba’s demeanor differently at the beginning of the attack compared to the end of it after she had fought him off whereas Dr. Gojer has considered them together and of a single piece.

At the beginning of the attack, Ms. A.P. described Mr. Diba as crying, saying that he was sorry and accusing her of cheating on him all while continuing to attack her. She described his eyes variously as “dark” and “weird looking” while he was stabbing her. She did not adopt the language put to her in questions of Mr. Diba appearing to have glossy or glassy eyes – she used her own words.

Later, when Mr. Diba was backing out of the apartment after having picked up the knife she pulled out of her hand and discarded, she said that he looked at her wide-eyed appearing both shocked and fearful but also with the same “dark” eyes she had earlier described.

I cannot agree with Dr. Gojer that her evidence points towards Mr. Diba being in an “altered state” and out of touch with reality at the time. Immediately before backing out of the apartment, Mr. Diba had experienced Ms. A.P. fighting back quite ferociously. I find no need to resort to explanations such as an altered state due to psychosis when the immediately preceding events fully and reasonably explain all of Mr. Diba’s reactions to them as reported by Ms. A.P. He had plenty of reason to be both shocked and terrified of Ms. A.P. after witnessing her pull the knife out of her hand and break the handle off and after seeing how fiercely she fought him off. The “dark” or “weird” expression on his face while stabbing her at the beginning is quite consistent with passion, fury or any number of other emotions that might be expected of someone who has decided to do something as drastic as stabling his fiancé because he believes she has cheated on him.

While the sound of pounding hooves may be due to zebras, simpler and more common explanations will normally suffice. This is such a case.

f. Mr Diba was following a command of God. Dr. Gojer attached significant importance to the idea that Mr. Diba claimed to be acting upon a command of God while attacking Ms. A.P. He attributed this conclusion to the evidence of Ms. A.P. whom he understood to have said that “god came to him in a dream and asked him to kill her because she was cheating on him” (emphasis added). Dr. Gojer was not present in court when Ms. A.P. testified, although I understand he had access to a transcript. However, he has misapprehended her evidence and I draw quite a different set of inferences from what she actually said in her testimony.

She did not say that Mr. Diba claimed God directed him to kill her in a dream. While I am prepared to agree with Mr. Herscovitch that this is a possible interpretation of the general words quoted by Ms. A.P., it is by no means the only one nor is it the most likely if the existence of a mental disorder is not first presumed. It is more plausible and consistent with the evidence to view Mr. Diba as having received confirmation in a dream of what he had feared for some time – that Ms. A.P. had cheated on him.

Dreams are experienced by the sane and by the psychotic alike and may be anodyne or bizarre, pleasant or terrifying. Dr. Gojer has extrapolated from the slender thread of Ms. A.P.’s memory of Mr. Diba’s mention of his dream into actual confirmation of an operative and present delusion driving his conduct thereafter. Sometimes a dream is just a dream and not something that is operating to control and direct the actions of a person once fully awake. Ms. A.P. did not describe Mr. Diba as being asleep or in a sleep-like trance and I attach no weight to Mr. Diba’s claim to have awakened some minutes later and after these events. He was responsive and communicating with her during the attack.

Dr. Gojer speculated that the reference to God in that dream implies that Mr. Diba felt bound to obey a formal command and had thus lost the ability to weigh his own actions for himself. Once again, I found that to be a conclusion not justified by the facts.

Mr. Diba said that he has recently become more religious following certain revelations he has received since being in custody. I infer from this that he was less religious at the time of the incident. Nothing in the words attributed to Mr. Diba by Ms. A.P. amounts to a claim that he was acting pursuant to a command that he felt powerless to resist or was in some way compelled to obey. Even if I accept that he believed God wanted her dead, he did not say that God ordered him to be the one to bring that about there and then. Nothing in Ms. A.P.’s description is inconsistent with Mr. Diba fully appreciating the nature and quality of what he was doing, including the fact that the reasonable members of the community at large would view his actions as morally wrong. Her evidence of his crying and apologizing while pursuing the attack is fully consistent with this inference.

g. The attack represented a complete break from normal behaviour. Dr. Gojer said that the stabbing incident represented a complete break from the behaviour of Mr. Diba that is indicative of psychosis pointing both to Ms. A.P.’s evidence of his demeanor during the attack (my differing assessment of that evidence is discussed above) and to his calm and peaceful behaviour the night before the attack. In this context, he said the attack was “so abnormal it doesn’t make sense”. I take a quite different view.

Ms. A.P. only knew Mr. Diba for a little more than nine months and been dating hm for less time than that. There had been no hint of violence in his relationship with her before the attack it is true. However, their relationship was only just beginning to mature. She found that he had become “less dovey” after voicing his suspicions of infidelity. On the night before the incident, he seemed quiet to her and, she believed, inebriated. Ms. A.P.’s relationship with Mr. Diba was too recent to enable her to have an accurate baseline from which to judge his behaviour when he lost his temper or to know whether he had previous outbursts of violence in his life. I am unable to agree with Dr. Gojer that there was a complete break in behaviour. Ms. A.P.’s evidence is consistent with Mr. Diba having avoided confronting her directly with his fears about infidelity, instead simmering and stewing on the matter for a month before things blew up. That interpretation is a more natural and common sense view of the facts based on the totality of the evidence.

[79] There is a further fundamental difference between the facts as I find them and those relied upon by Dr. Gojer and this relates to the overall credibility of Mr. Diba’s reports regarding his own mental state and mental processes at the relevant times.

[80] While readily admitting that he could not attach “great weight” to the accounts given by Mr. Diba, Dr. Gojer repeatedly referred to this same evidence as confirming his diagnosis or being connected to it. He also confirmed that absent the evidence of Ms. A.P., he would still have had the same opinion regarding Mr. Diba based on his file review and interviews with Mr. Diba, even if his opinion would have been “softer” and may not have been enough to satisfy the legal standard.

[81] Having heard the evidence of all of the witnesses, I differ quite substantially from Dr. Gojer in that I am unable to attach any weight to the evidence of Mr. Diba concerning his mental state at any relevant time.

[82] Mr. Diba is rightly filled with remorse by what he did. He recounted in vivid detail certain religious revelations in 2018 and 2019 that he said he experienced during his time in detention, months after the incident. He is now persuaded that it was not he but a demon who attacked him that bears responsibility for what happened. That personal conviction of his only arose after the fact and is a product of the subsequent religious experiences and reflections that he has had. His discussions with Dr. Gojer all occurred after those religious experiences as well. Whether Mr. Diba is looking backwards at events through the lens of those subsequent religious events and experiences when recounting past events or whether he is simply fabricating his evidence wholesale is a distinction without a difference. I am not persuaded that he can tell the difference at this point and I have concluded that his ex post facto self-reported evidence regarding his mental health at different points in time is simply not reliable.

[83] It appears more probable to me that Mr. Diba has, with the passage of time, constructed a self-image he can live with. That process started with his assertion on the day of the incident that he had no memory whatsoever of the events and has evolved over time into a view of events consistent with a demonic spiritual attack replete with strange voices, shadows and lights, none of which he can be shown to have mentioned to anyone until long after the fact. It was plain to me in listening to and observing Mr. Diba that his later religious experiences have fundamentally affected – and tainted – his memory of the events in question to the point where I cannot rely upon his evidence in relation to his mental state at the relevant time.

[84] I have considered whether Officer Woodyer’s or Ms. A.P.’s testimony regarding possible hallucinations of Mr. Diba before the incident might alter this conclusion.

[85] Ms. A.P.’s evidence on this was very vague and general. It was also not confirmed by Mr. Diba himself who denied ever telling her about hallucinations because he did not want to seem weird. What was the nature of the alleged hallucination he mentioned? Was it the sort of relatively common impression sometimes experienced by cannabis users as reported by Dr. Gojer or was it something more significant? Was he high when he experienced them? Too little is known of the claim to draw any useful conclusions. In the case of the evidence of Officer Woodyer, there is no evidence that Mr. Diba repeated the claim of not sleeping and hallucinating for four days to anyone else at the time. Mr. Diba certainly did not elaborate on the nature of his alleged hallucinations. At trial, Mr. Diba denied having gone without sleep for four days although he said he had trouble sleeping and been tossing and turning for a couple of nights at least. He also denied having heard any voices or seen any lights or shadows in the “couple” of days prior to the incident. I have little faith in the credibility of Mr. Diba’s statements to police of an apparently exculpatory nature – whether his claim to have no memory at all or his claim to have been hallucinating.

[86] I do not view either Ms. A.P.’s account or that of Officer Woodyer as having any significant weight in terms of my assessment of the credibility of Mr. Diba’s self-reporting of potential psychotic symptoms months or years after the incident.

[87] Dr. Gojer appeared to reject any suggestion that Mr. Diba had fabricated some or all of his evidence because he thought that Mr. Diba might have fabricated a much more useful story for his defence had he wished. For example, Dr. Gojer suggested, he might have claimed to have experienced visions and voices during the incident or even the day before.

[88] With the advantage of hindsight, Mr. Diba might well have fashioned a more convincing story than memory loss to persuade a court that he was not criminally responsible for his actions. There was one very prominent fact that stood in the way of his doing so: on the day of the incident, Mr. Diba told police that he remembered nothing before waking up at 6:00 a.m. which also happened to be the time of the police call. This made the prospect of telling a different story at trial much more difficult.

[89] Dr. Gojer opined that what may appear as a selective and highly convenient gap in Mr. Diba’s memory is quite consistent with the transient psychotic episode that he believes occurred here. A person might, he said, emerge from the fog of such an episode quite quickly and thereafter appear normal even if the memory of the event itself is not retained. It is also true that a person not versed in the finer details of the requirements of s. 16 of the Criminal Code might falsely claim complete loss of memory on the day of the incident to attempt to evade responsibility. Mr. Diba’s evidence of memory loss is not corroborative of Dr. Gojer’s opinion unless it is first accepted as true. I do not accept that evidence at face value and, having considered it carefully, afford it no weight.

[90] In my view, Mr. Diba’s claim to complete initial loss of memory of the events coupled with such limited recovered memory lacks credibility. He remembered seeing a clock with the time and thought he saw this before he “tussled” with Ms. A.P. for possession of a knife. His admission to police was that he had no memory before he “woke up”. The manner in which he described “tussling” with Ms. A.P. for possession of the knife does not appear to explain the nature of the cuts to his fingers – his gestures on the witness stand showed him grasping the knife with two hands together almost as if praying, pulling the knife away with palms and extended fingers held together over the knife blade. Ms. A.P.’s evidence – that I prefer in every way to his – was that she pulled the knife out of her own hand and discarded it, with Mr. Diba subsequently picking it up and leaving the apartment in some shock and fear of her given what he had just witnessed. The manner in which he passed the knife from one hand to the other when police approached him also does not suggest someone in a fog with little consciousness of the object he held. It suggests someone considering his options. The person Ms. A.P. described as stabbing her was similarly conscious and responsive to her words and actions. That person was expressing regret and the reason for his regret. There was no dramatic change in his mental state between the two events.

[91] I have not sought to highlight each and every instance where Dr. Gojer relied upon facts that are different from those I have found based on the trial evidence. The discrepancy between the facts as I have found them and the factual foundations of Dr. Gojer’s opinion are sufficiently material as to make it quite unsafe for me to rely upon his opinion at all. I do not do so.

(ii) Other evidence of operative mental disorder

[92] Having declined to accept Dr. Gojer’s opinion evidence regarding the existence of an operative mental disorder at the relevant time, I must consider whether the evidence I do accept discharges the onus of the accused pursuant to s. 16 of the Criminal Code. In my view, the evidence that Mr. Diba was suffering from a mental disorder at the time of the stabbing attack on Ms. A.P. is not persuasive.

[93] Given my findings of fact, there is simply no credible relevant history of mental illness prior to or subsequent to the incident.

[94] I accept that lack of prior or subsequent history of psychotic incidents or major mental disorders is not dispositive of this question and that a transient psychotic episode of the nature described by Dr. Gojer can come and go without prior warning and without subsequent manifestation. That being said, a relevant prior medical history might make equivocal evidence of a transient psychotic episode at the relevant time less equivocal. That is not the case here.

[95] I have considered the possible role of marijuana. Mr. Diba admitted to being a regular user marijuana. The evening before the incident, it appears that Mr. Diba consumed no more and possibly less marijuana than was his habit having shared three one-gram marijuana cigarettes with one or two others each time (he said that his habit was 1-2 grams per day). This does not of course mean that marijuana could not have contributed to triggering a psychotic episode on this one occasion. It does render the thesis less likely without other corroboration that is lacking here.

[96] Evidence that might be pointed to as consistent with an operative mental disorder producing the type of psychotic episode described by Dr. Gojer is also consistent with other explanations, including an ex post facto effort by the accused to cast himself in the light he is best able to live with.

[97] Explosions of jealousy and rage lie behind thousands of incidents of domestic violence every year. That does not excuse them nor detract from an offender’s degree of responsibility for them. To understand something is not to excuse it. However, there is no need to resort to the hypothesis of a transient psychotic episode to explain satisfactorily virtually of the evidence before me that I do accept.

[98] The broad lines of this incident are, unfortunately, not unusual. Loss of agency is not a condition to be presumed but to be proved. An operative mental disorder is a possible explanation for the observed behaviour here but is by no means a necessary one nor even a probable one. The burden of proof lies upon the party alleging it – in this case the defence. The incident is certainly a disturbing one but I cannot find that the evidence viewed fairly supports the conclusion that Mr. Diba was likely suffering from a mental disorder at the relevant time.

[99] Did the alleged mental disorder render Mr. Diba incapable of appreciating the nature and quality of his actions or of knowing that they were wrong?

[100] In view of my findings on the first part of the test, it is not strictly necessary for me to consider the second part of the s. 16 test. However, and for much the same reasons, I find that the defence has failed to discharge its onus here as well.

[101] As soon as Mr. Diba saw Ms. A.P. open her eyes, he began to cry. It is possible that he was crying before then, but Ms. A.P.’s first impression on opening her eyes was that he began to cry. That reaction indicates regret and distress. He then began to talk to her while continuing to stab her. He repeated over and over again that he was sorry. This too expresses – even more explicitly than the crying – that he knew he was doing something to her for which he felt a need to apologize. He fully appreciated that what he was doing was wrong as he was doing it.

[102] The attack did not cease because regret overcame him or because he suddenly snapped out of an altered state. The attack ended because Ms. A.P. used her legs on two different occasions to overpower him. The first time she took his body in a lock and pulled him away from her and cast him off the bed. The second time she pulled his arm to the point of popping it to some degree. She certainly inflicted a considerable amount of pain upon him in doing so. The knife handle was broken off by her and Mr. Diba could no longer use it to pursue his attack. He was shocked and fearful of the fury of her response. His response of retreating and closing the door behind him is not at all difficult to understand in the context in which it occurred.

[103] The defence points to Ms. A.P.’s testimony that Mr. Diba said that God had come to him in a dream and told him that she had cheated on him as evidence that he could not process what was going on or understand that it was wrong. Taken at its highest, Ms. A.P.’s evidence regarding Mr. Diba’s words at the time do not suggest to me that he considered that he was acting under an imperative command that overcame his own agency and that he was bound to obey. He may well have been persuaded that Ms. A.P. had cheated on him and he may well have persuaded himself that this made her morally blameworthy to the point that she merited death. However, this does not mean that he failed to appreciate that taking it upon himself to cause her death was objectively wrong in the eyes of the community. His own contemporary expressions of sorrow and regret suggest quite strongly that he did.

[104] Nothing in these events persuades me that Mr. Diba was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his actions or knowing they were wrong when he stabbed Ms. A.P. that morning. To the contrary, I find that he fully appreciated the nature and quality of his actions and their wrongful nature as he stabbed her and clearly expressed that understanding as he did it.

[105] Mr. Herscovitch did not ask me to make a finding of non-mental disorder automatism in this case. He referred me to R. v. Chan, 2020 ONCA 333 where the statutory limitations on the common law automatism defence contained in s. 33.1 of the Criminal Code were found to be inoperative. For the sake of completeness, I shall merely note the facts as I have found them are quite far from meeting the balance of probabilities standard to establish automatism from any source – drug-induced or the product of a mental disorder. Mr. Diba’s claim to a complete lack of memory of the events has not been accepted by me as being sincere. Ms. A.P.’s description of his behaviour during the attack is quite consistent with Mr. Diba having been awake and rational throughout. He explained what he was doing and why. He responded to her. He returned to the task after her vigorous resistance until he finally retreated in fear of her.

[106] The evidence of drug-induced automatism is thinner still: Mr. Diba’s account of his cannabis consumption the night before was that it was at or somewhat below his normal level of consumption and he had consumed it over a period of several hours ending five or six hours before the incident. Dr. Gojer did not feel able to reach a balance or probabilities diagnosis on the basis of the marijuana consumption evidence alone even if he said it was possible that such a reaction could be triggered even with a relatively modest amount.

(b) Did Mr. Diba intend to kill Ms. A.P. when he stabbed her?

[107] My rejection of the defence under s. 16 of the Criminal Code does not in any way dispense the Crown from its obligation to prove the essential elements of each crime charged beyond a reasonable doubt. Attempted murder is a crime of specific intent and the Crown must accordingly demonstrate beyond a reasonable doubt that in committing the actions alleged – in this case stabbing Ms. A.P. – Mr. Diba acted knowingly and intended thereby to kill her. In my view, the Crown has discharged this burden of proof.

[108] Mr. Diba has admitted stabbing Ms. A.P. and her account of how this occurred – evidence that I accept without hesitation – is amply corroborated by the physical evidence of photographs of the scene, photographs of her wounds and the medical reports from her admission to hospital. The wounds Ms. A.P. suffered as a result of the stabbing were indeed grievous. None of this evidence is contradicted and all of it points in the same direction.

[109] There can be no doubt that the actions of Mr. Diba in taking possession of a knife and stabbing her with it were deliberate and intentional. He took steps to acquire the knife in the first place – the photograph of the knife suggests that he did so in the kitchen just a few steps away from the bed in the small bachelor apartment. He stabbed her multiple times and pursued her across the apartment to continue doing so after she repelled him the first time. The intentional nature of his actions – acquiring a knife and stabbing her with it – cannot be doubted. This general intent satisfies the requirements of the two included offences – aggravated assault and assault with a weapon – but by itself does not satisfy the specific intent requirement of attempted murder.

[110] If the stabbing itself was intentional as I have found it was, did Mr. Diba also intend to kill her when he stabbed her? There can be no doubt that he did.

[111] He pinned her to the bed with his knees when he initiated the attack and, having been thrown off of her after stabbing her at least once he, pursued her, prevented her from leaving the apartment and threw her into the bathtub where he continued the attack. She bled profusely from the wounds he inflicted as is graphically visible in the crime scene photographs. He expressed sorrow and indicated that she had to die while he was committing these actions. His words signal his clear intent to kill and I have found that they were the product of an operative mind that was able to reason and understand what he was doing. There can be no doubt whatsoever that Mr. Diba intended to kill Ms. A.P. when he stabbed her. He failed in his enterprise not for want of trying but because of furious resistance that he could not subdue.

[112] Needless to say, Ms. A.P. in no way consented to this violent assault upon her that took her entirely by surprise while she slept, which assault was relentlessly pursued despite her tearful pleas that he stop.

[113] Having found that the Crown has proved beyond a reasonable doubt all of the essential elements of the crime of attempted murder, there is no need for me to consider separately the included offences of aggravated assault or assault with a weapon. The specific intent of the more serious offence subsumes the general intent requirement of the other two and the physical aspects of each of these offences – the possession and use of a weapon to inflict grievous wounds by its means – has already been found proved beyond a reasonable doubt.

[114] Mr. Diba must be found guilty of attempted murder as charged.

(c) Did Mr. Diba possess the knife for a purpose dangerous to the public peace or for the purpose of committing an offence?

[115] The elements of this separate offence may be considered in two different time frames: the time when Mr. Diba initially took possession of the knife that morning and the time when Mr. Diba re-acquired possession of it after Ms. A.P. broke the handle off and threw the blade away.

[116] There can be no doubt that the knife – with and without the handle – fits the definition of a weapon in the context in which Mr. Diba took possession of it.

[117] Mr Diba initially acquired the knife an unknown period of time prior to the incident. The evidence points to his having done so in the kitchen a few minutes prior to stabbing her with it, but the precise time that he did so is not material. There is no reasonable inference that is consistent with the facts other than that Mr. Diba took possession of the knife and brought it back to the bed where his fiancé lay sleeping with the intent of committing an offence with it. I so find.

[118] The second time frame to be considered is when he picked the knife blade up from the floor after Ms. A.P. removed it from her hand. He proceeded to point the knife blade at her when he picked it up and then backed away and, ultimately, out the door of the apartment (steps away). He did not drop the knife blade once outside the apartment. He might potentially have attempted to force the door open as indeed Officer Gabbidon did a few minutes later. His intentions in relation to the knife blade he continued to possess is evidenced by his reaction to the command of police to drop it. He did not initially drop the knife but switched it from one hand to the other before deciding to comply.

[119] I find that Mr. Diba possessed a weapon – the knife – intentionally at all times and that when he acquired the knife the first time, he did so with the intent of using it to commit an offence. When he reacquired it, the knife blade, the second time (minus the handle) he did so intentionally with an intent dangerous to the public peace. He must be found guilty as charged.

Decision

[120] Accordingly, I find that Mr. Diba has failed to establish that he is not criminally responsible for his actions pursuant to s. 16 of the Criminal Code. I also find that in stabbing Ms. A.P. with a knife, he acted deliberately and with the specific intent to kill her. There shall be a verdict of guilty entered for Count 1 (Attempted Murder).

[121] I also find that Mr. Diba acquired possession of the knife intending to use it as a weapon to commit an offence. He intentionally re-acquired possession of the knife after Ms. A.P. broke its handle and continued to maintain possession of it for a purpose dangerous to the public peace up until the point where police arrived and he obeyed the command to drop it. There shall be a verdict of guilty entered for Count 4 (Weapons Dangerous).

[122] A date shall now be set for sentencing.

S.F. Dunphy J.

Date: October 23, 2020