Court File and Parties

Court File No.: CR-19-30000285 Date: 2020-12-11 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: December 11, 2020

Reasons for Sentence

[1] I found Mr. Diba guilty of attempted murder and of possession of a weapon for the purpose of committing an offence after a judge-alone trial before me. My reasons for judgment were delivered on October 23, 2020 (2020 ONSC 6407) and contain a detailed discussion of the circumstances of the offence and those of the offender that I shall not repeat here beyond a summary thereof. I delivered brief oral reasons for the sentence I handed down this morning with more detailed reasons to follow. These are those reasons.

Circumstances of the Offence

[2] This conviction arises from a brutal and entirely unprovoked attack by Mr. Diba on the person of his sleeping fiancé, Ms. A.P. in the early morning hours of October 26, 2017.

[3] Ms. A.P. awoke to the terrifying sight of Mr. Diba attempting to stab her in the throat with a kitchen knife. When he saw that she had awakened, he said he was sorry and began crying but did not desist. She was able to fight him off in a struggle that lasted several minutes during which he pursued her within the apartment and stabbed her multiple times. She managed to get him outside the door of the apartment they shared and locked him out in the hallway while she summoned help. Police came within minutes and arrested Mr. Diba with the blade of the knife still in his hands.

[4] Ms. A.P. spent four days in hospital receiving treatment for ten significant stab wounds. She is not yet fully recovered from the physical wounds received three years later and no one can say how long the psychic scars will take to heal. This was an undoubtedly brutal attack.

Circumstances of the Offender

[5] There can be little doubt that Mr. Diba has led a difficult life. Born in England, he came to Canada with his father at the age of 10. His parents separated when he was very young and his childhood was marked by custody disputes between his parents including an episode where he was abducted by his father at the age of six and brought to live in Iran for a period of time. He was only able to see his mother again shortly before she died more than twenty years ago. He described his father as abusive and the two have been estranged for a number of years – Mr. Diba indicated that his last contact with his father was seven years ago. His father cut short an interview with Mr. Diba’s expert forensic psychiatrist prior to this trial, evincing no interest in his son’s fate. He has two younger siblings with whom it appears he also had no contact for several years prior to the incident.

[6] Mr. Diba finished high school in Canada. He attempted to pursue some college courses but did not complete them. At the time of the offence in 2017 he was 34 years of age with a sporadic work history. He was working part-time as a security guard but had not been given any assignments by his employer for about two weeks.

[7] He has pursued self-improvement courses to the extent possible while in detention. He has pursued a course to qualify him for further post-secondary studies, and presented certificates for having pursued and completed various life skills, bible studies and literacy programmes.

[8] In the years prior to 2017, Mr. Diba struggled with anxiety and depression for which he only intermittently sought treatment and also experienced homelessness and precarious housing.

[9] Mr. Diba was a regular user of cannabis in the year prior to the incident but does not appear to have been a particularly heavy user. He shared three marijuana “joints” during the course of the day prior to the incident and this was more or less consistent with his daily usage habits in the months prior.

[10] Mr. Diba’s has no prior criminal record.

Victim Impact Statement

[11] I was advised that Ms. A.P. felt unable to complete a victim impact statement. I had the opportunity to observe her first-hand when she testified and was cross-examined. I gained a very firm grasp of the very considerable physical and emotional impact these events have had upon her.

Position of the Parties

[12] The Crown emphasized the Court of Appeal jurisprudence that strongly suggests a range of eight and one-half years to life imprisonment for attempted murder cases with the aggravating feature of domestic violence. In the circumstances of this case, given the vulnerability of the victim who was sleeping in bed and the traumatic impact of the crime upon her, the Crown submitted that an exemplary sentence in the range of ten to twelve years (less credits) is fully justified.

[13] In terms of ancillary orders, the Crown asked for a DNA order pursuant to s. 487.053 of the Criminal Code, an order prohibiting contact by Mr. Diba with Ms. A.P. while in custody pursuant to s. 743.21 of the Criminal Code and a lifetime weapons prohibition order under s. 109(2) of the Criminal Code (beyond the minimum prescribed order of ten years).

[14] The defence urged me to sentence Mr. Diba to seven years less a day which, with five years total pre-sentence credit would result in a net sentence of two years less a day in a provincial reformatory. Mr. Herscovitch submitted that even absent a finding that Mr. Diba was not criminally responsible, it is plain that mental health issues played a notable role in this incident. He said that that I might recommend that Mr. Diba be sent to the St. Lawrence detention centre in Brockville where there are a variety of mental health treatment options available and that a reformatory sentence would enable me to include a probation term of three years in the sentence which could attach requirements to pursued treatment programmes. He noted cases such as R. v. Jihad, [2015] O.J. No. 7240 as indicating the flexibility that can be shown where, as here, mental health concerns have played an obvious contributing role. He also referenced R. v. Bulat, [2013] O.J. No. 3559 where a 74-year old man whose health had deteriorated significantly while in detention awaiting trial for attempted murder of his former girlfriend was given a six-year sentence despite significant elements of planning and stalking that preceded the incident.

Aggravating and Mitigating Circumstances

(a) Aggravating Circumstances

[15] The domestic circumstances of this attack are clearly an aggravating circumstance: s. 718.2(a)(ii) Criminal Code. Ms. A.P. was engaged to be married to Mr. Diba and the two had been sharing her small bachelor apartment for almost two months at the time of the incident. She was asleep and defenseless when the attack began. The attack came when she was as vulnerable as it is possible to be and was entirely without warning or provocation.

(b) Mitigating Circumstances

[16] Mr. Diba has shown considerable remorse that I accept without hesitation as sincere. While he did not accept responsibility to the extent of entering a guilty plea, he contested none of the bare facts of this incident. He admitted that it was he who stabbed his fiancé. The trial was primarily focused on the question of whether Mr. Diba was not criminally responsible by reason of an alleged psychotic state.

[17] Mr. Diba has no prior criminal record. That is a circumstance that warrants some weight as a mitigating circumstance.

[18] Mr. Diba has been in custody since his arrest on October 26, 2017. As of today, the parties agree that he is entitled to aggregate pre-sentence custody credit of 4 years, eight months and eleven days after applying a 1.5:1 credit.

[19] In addition, I must consider whether Mr. Diba is entitled to any additional credit – whether in the form of a numerical credit or an additional consideration in mitigation of sentence – arising from the conditions of his detention. Mr. Herscovitch filed an affidavit outlining the lock-down conditions to which Mr. Diba has been subject at Toronto East Detention. Counsel have agreed that Mr. Diba should receive additional credit in recognition of the harsh conditions of his detention such that he is entitled to an aggregate credit for both pre-sentence custody and conditions of detention of five years. I am accepting their joint recommendation in that regard.

Analysis and discussion of fit and proper sentence

[20] The offence of attempted murder is one for which the adage about every case turning on its particular facts seems particularly apt. This offence is among the most serious known to the criminal law. A constituent element of this offence – the specific intent to kill – is also a requirement for the crime of murder. It is often the case – and it was certainly so in this case – that the difference between a charge of murder and one of attempted murder is no more than chance. A centimetre to the left or right and the knife might have cut a vital artery or punctured a vital organ. It was not for want of trying by Mr. Diba that Ms. A.P. survived this attack. He came at her time and time again, pursuing her throughout the small apartment and leaving a trail of blood in his wake. It was a gruesome affair the sheer horror of which cannot be sugar-coated or minimized.

[21] Denunciation and deterrence are both sentencing principles entitled to very considerable and even paramount weight in this case: R. v. Boucher, 2004 17719 (Ont. C.A.) at para. 27.

[22] The impact of this crime upon the victim was certainly severe and requires denunciation in the strongest terms. Ms. A.P. received grievous wounds that required four days of treatment before her release from hospital. I find the comments of Simmons J.A. in Boucher to be particularly appropriate in this context. She noted that “where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection” (at para. 24).

[23] Ms. A.P. was in a particularly vulnerable state when the attack occurred. She had aged out of foster care into homelessness on the streets of Toronto where she had to make her own way for several years. At the time of the incident, she was on a disability allowance as a result of seizures she was experiencing but had finally succeeded in securing stable housing. She seemed to be turning a corner. The traumatic impact this attack had upon her was evident during her testimony and it cannot be guessed how long she will be in recovering from it.

[24] Boucher and R. v Viennau, 2015 ONCA 898 are two recent Court of Appeal decisions that have confirmed that the appropriate sentencing range in the case of attempted murder with the aggravating feature of domestic violence is between 8.5 years and life imprisonment.

[25] Unlike Boucher, there is no evidence that this attack in this case was planned or premeditated. What precisely served as the trigger for this attack cannot be said with any confidence although a growing sense of jealousy on Mr. Diba’s part appears to have played a prominent role. Mr. Diba claimed to have no memory of the circumstances of the attack itself and claimed that all was well with the couple immediately beforehand. I consider the lack of premeditation to be a lack of an aggravating circumstance in this case more than a mitigating one.

[26] The circumstances of this case offer some remarkable parallels to that of R. v. Adamson, 2018 ONCA 678. In Adamson, the complainant’s ex-boyfriend broke into her home in the early morning hours. She awoke just before he entered the bedroom and tried to slit her throat while saying “I’m sorry”. He fled when she screamed. A sentence of 13 years less pre-sentence custody was imposed and upheld by the Court of Appeal. There are some aggravating features in Adamson that are not present here, including the home invasion aspect as well as the pre-meditated nature of the attack. The offender denied that he was the perpetrator of the attack. There were also some very considerable mitigating circumstances present there but absent here including the fact that Mr. Adamson was a youthful first-time offender with considerable potential for rehabilitation.

[27] The prospects for rehabilitation of Mr. Diba are quite difficult for me to get a firm handle on. There is nothing in the circumstances of this case that can give me a strong degree of confidence that this was a “one-off” occurrence on Mr. Diba’s part that will never be repeated. Why what appears to have been repressed feelings of jealousy erupted into violence the way it did and when it did, I cannot say. Nor can I say that the danger of repetition has passed. It is clear that unaddressed mental health issues have played a role – and a significant one – in this attack. Those mental health issues remain largely unexamined by Mr. Diba at this point and the degree of further risk Mr. Diba may pose to others in future will remain unknown for as long as Mr. Diba does not roll up his sleeves and participate in examining what needs examining and treating what can be treated.

[28] The last two sentencing principles that I think need to be addressed are those of proportionality and parity. Both of these considerations in my view drive a consideration of sentence above the low end of the range and indeed towards the middle or even upper end.

[29] I consider that Mr. Diba’s religious focus since his detention also has the potential to be a very positive force in his life. Overall, I assess the outlook for his potential for rehabilitation as being guardedly optimistic. It seems very likely to me that he will need to show willingness to be open to pursuing treatment in a more consistent manner than he has done in the past.

[30] In my view, an appropriate sentence having regard to all of the circumstances must be above the low end of the range and I cannot therefore see my way clear to adopting the defence recommendation which is lower still. While the option of a long period of probation may help encourage the pursuit of treatment, treatment is not a panacea. Further, there is no actual history of Mr. Diba pursuing a course of treatment or therapy for more than a short period of time before now On the other hand, Mr. Diba will have access to treatment in the penitentiary system and, should the picture change, the Parole Board is well equipped to assess his progress and to consider his eligibility for early release.

[31] Mr. Diba has shown genuine remorse and contrition, but as admirable as those sentiments are, they do not detract from the necessity for society to hold him - and for him to hold himself - accountable for his actions. This attack, while not premeditated, was pursued over and over again until Ms. A.P. succeeded in fighting him off. He pursued her from the bed to the doorway and then into the bathroom. It was only her extraordinary efforts of self-defence that succeeded in saving her life. The sentence I am imposing gives weight to Mr. Diba’s sincere remorse, to the contribution of mental health issues to his offence and to the numerous challenges that life has put in his way until now. I strongly urge him to pursue treatment while in custody and to do so as soon and as fully as he can.

[32] In my view, a penitentiary sentence of nine years gives appropriate recognition to all of the factors I have discussed and represents the fullest measure of leniency that I consider the circumstances allow me to grant him. As previously discussed, the parties have agreed that Mr. Diba shall be entitled to total credit of five years in respect of pre-sentence custody and harsh detention conditions. Accordingly, Mr. Diba shall have four years left to serve from today.

[33] Although not discussed during oral submissions, I am required to deliver a separate sentence for each charge for which Mr. Diba was convicted even where the sentences are to be served concurrently. In addition to attempted murder, I am required to sentence him for possession of a weapon for the purpose of committing an offence. Mr. Diba shall be sentenced to one year in respect of that offence, such sentence to be served concurrently with his (longer) sentence for attempted murder. This has no impact on his remaining time to be served.

[34] In addition, ancillary orders shall be made prohibiting Mr. Diba form contacting Ms. A.P., requiring a DNA sample to be given and imposing a life-time weapons prohibition pursuant to s. 109(2).

Disposition

[35] Accordingly, I find that Mr. Diba shall be sentenced to:

a. Count 1 (attempted murder): Nine years in penitentiary less aggregate credit for time served and conditions of detention totaling five years leaving four years left to be served;

b. Count 4 (weapons dangerous): One year concurrent with Count 1;

c. Provide a DNA sample pursuant to s. 487.053 of the Criminal Code;

d. an order prohibiting contact with Ms. A.P. while in custody pursuant to s. 743.21 of the Criminal Code; and

e. a lifetime weapons prohibition order under s. 109(2) of the Criminal Code.

[36] I am directing that my reasons for judgment and my reasons for sentence be forwarded to the correctional facility where Mr. Diba is to serve his sentence.

S.F. Dunphy J.

Date: December 11, 2020