COURT FILE NO.: CR-20-11008
DATE: 20230502
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CHARMAINE ANNE GUISALTA
Defendant
Erin Thomas, for the Crown
Stephen Whitzman, for the Defendant
HEARD: February 27, 28, March 1, 2, 6, 7, 8, 13 and 16, 2023
RESTRICTION ON PUBLICATION
Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act. This judgment complies with this restriction so that it can be published.
REASONS FOR JUDGMENT
DI LUCA J.:
OVERVIEW
[1] Charmaine Guisalta was tried before me without a jury on a single count alleging that she committed second degree murder on Mohammad Amin Sadeghieh. At the conclusion of the trial, I reserved my decision. I now provide these reasons for judgment.
[2] The Crown alleges that Ms. Guisalta intentionally killed Mr. Sadeghieh by stabbing him about the head, neck and upper torso, approximately 28 times on the evening of October 19-20, 2020.
[3] While Ms. Guisalta admits that she killed Mr. Sadeghieh, she claims she acted in self- defence and without the intent required for murder. She also argues that provocation is a live issue, should the court be satisfied that she acted with the requisite level of intent for murder. She seeks an acquittal or, in the alternative, a conviction on the lesser and included offence of manslaughter.
[4] In what follows, I will review the fundamental legal principles that guide all criminal trials. I will then review the evidence that is relevant to the live issues. I will also review the applicable legal principles for the offence of murder and for the various legal issues present in this case. Lastly, I will assess the evidence in accordance with the applicable legal principles and set out my findings and conclusions.
FUNDAMENTAL LEGAL PRINCIPLES
[5] At the outset, it is important to note the fundamental legal principles that guide all criminal trials. Ms. Guisalta is presumed innocent of the charge on the indictment. The presumption of innocence is of fundamental importance in the criminal justice system, as it serves to place the burden of proof squarely on the Crown and also serves to protect against wrongful conviction.
[6] The presumption of innocence stays with Ms. Guisalta throughout the trial and is only displaced if I am satisfied that the Crown has proven the charge, or an offence included in the charge, beyond a reasonable doubt. The Crown has the sole obligation or burden of proving the charge against Ms. Guisalta. Ms. Guisalta has no obligation to prove anything or even to testify.
[7] The concept of proof beyond a reasonable doubt is also of fundamental importance in the criminal justice system. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[8] A reasonable doubt does not need to be based only on evidence that is accepted by the trier of fact, see R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 36, and R. v. Darnley, 2020 ONCA 179 at paras. 31-35. All of the evidence must be considered in assessing whether a reasonable doubt remains at the end of the case, see R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont.C.A.).
[9] Proof of likely or even probable guilt is not enough to sustain a criminal conviction. Conversely, proof to a level of absolute certainty is also not required as that standard is impossibly high. In order to convict Ms. Guisalta of the offence alleged, I must be sure that she committed the offence. If I am not sure, I must acquit her.
REVIEW OF THE EVIDENCE
[10] By way of brief overview, the deceased, Mohammed Amin Sadeghieh, worked in the IT branch of the Times Group Corporation. He was last seen alive by his co-workers on October 19, 2020.
[11] The defendant, Charmaine Guisalta, met Mr. Sadeghieh online, though the precise circumstances under which they met is unclear. The nature of their relationship is also unclear. That said, it is agreed that Ms. Guisalta and Mr. Sadeghieh had prior contact by way of two SMS messages sent by Mr. Sadeghieh from his cellular phone to Ms. Guisalta on October 7, 2020. The content of these text messages is not known.
[12] In terms of the events immediately surrounding Mr. Sadeghieh’s death, it appears that on October 19, 2020, Ms. Guisalta and Mr. Sadeghieh agreed to meet up at his home. A video timeline comprised of excerpts of various security and traffic cameras shows that at approximately 6:02 p.m., Mr. Sadeghieh was at a Whole Foods store on Highway 7 in Markham where he made a purchase. He then travelled to his home at 113 Feeney Lane, where he stayed until approximately 7:15 p.m. He then travelled in his vehicle, a black Honda CRV, to Ms. Guisalta’s apartment on Wilson Avenue in Toronto. Ms. Guisalta entered his vehicle at approximately 7:47 p.m. and they then returned to Mr. Sadeghieh’s home, arriving at approximately 8:11 p.m. Ms. Guisalta and Mr. Sadeghieh then entered his home.
[13] At approximately 1:12 a.m. on October 20, 2020, Ms. Guisalta left the home driving Mr. Sadeghieh’s Honda CRV. She travelled back to her apartment on Wilson Avenue, where she was joined by her girlfriend N.S. They then drove towards Niagara Falls but turned back at some point. Upon their return to Toronto, they met up with John Fidelino. Mr. Sadeghieh’s vehicle was transferred to Mr. Fidelino. Ms. Guisalta and N.S. returned to Ms. Guisalta’s apartment, arriving by Uber at approximately 4:20 a.m.
[14] In the video timeline, Ms. Guisalta is seen wearing a red ball cap, a denim jean jacket, a striped grey and white shirt and shorts. The ball cap, jean jacket and shirt were later obtained by police. The shorts were never recovered.
[15] Ms. Guisalta was inside Mr. Sadeghieh’s home for approximately five hours. He was stabbed to death towards the later portion of that time period, likely around 12:40-12:50 a.m.
Discovery of the Body
[16] On October 21, 2020, Mr. Sadeghieh’s employer, who was also his uncle, became concerned for his well-being so he sent a co-worker to Mr. Sadeghieh’s home to check on him. Mr. Sadeghieh had not been heard from or seen since October 19, 2020. He had not responded to calls or emails, which was out of character.
[17] In the early afternoon of October 21, 2020, Seyedebrahim Mojtabee attended at Mr. Sadeghieh’s home in Markham, Ontario. Mr. Mojtabee entered the house through the unlocked garage doorway. The alarm was off. He called out to Mr. Sadeghieh but received no answer.
[18] Mr. Mojtabee went upstairs to the master bedroom. He saw Mr. Sadeghieh’s feet sticking out from beside the bed and his hand on top of the mattress. There was large pool of blood on the floor and blood on the mattress.
[19] Mr. Mojtabee called 911 and also called a co-worker, Amir Saman Asem, who also attended at the residence. Mr. Mojtabee and Mr. Asem then met York Regional Police at the home and Mr. Asem took officers up to the bedroom.
[20] Mr. Sadeghieh’s Honda CRV was noticeably absent from the garage.
The Scene Inside Mr. Sadeghieh’s Home
[21] Shortly after Mr. Sadeghieh’s body was discovered, the scene was sealed and examined by York Region Police identification officers. Numerous photographs of the scene taken over various days were admitted into evidence.
[22] Overall, the photographs show a home that is very tidy and uncluttered. The dinette area inside the kitchen has a table with a bottle of Chivas Regal whiskey and a bottle of Dillon’s Gin. It appears that some whiskey has been poured into at least one of the glasses. There is also a peeled orange on a plate and a used tissue.
[23] There is steak from Whole Foods in its wrapper on the kitchen counter and a paper grocery bag on the floor next to the counter. Behind the steak are some bottles of wine and glasses. The wine bottles are not opened. There is also a box for a Chivas Regal whiskey bottle.
[24] Mr. Sadeghieh’s body is inside the master bedroom. He is naked, lying face down in a pool of blood between the bed and the outside wall. His hand is up on the bed and there is visible blood staining under his hand and arm. On the floor near his head, there appear to be some pillows and a folded blanket. On top of the blanket are a pair of socks and two pairs of underwear. A pair of pants are on top of the bed.
[25] There is a large amount of blood staining on the top part of bed, roughly in the middle of the bed. The bed cover and top sheet appear to have been pulled down to the foot of the bed. The top sheet is bunched up next to Mr. Sadeghieh’s body. There is a significant area of blood staining on the floor at the foot of the bed. Against the wall there is a television stand/storage unit with its doors open. There is blood staining on one of the doors. Two curtain ties are on the floor and the curtains and blinds are drawn.
[26] There is a nightstand on either side of the bed. On the right-side nightstand there is a glass, a small bottle of what appears to be hand sanitizer and an open bottle of Tylenol with one loose pill next to it. The drawer is partially opened, and a package of Imodium can be seen inside the drawer.
[27] The walk-in closet to the master bedroom has a series of built-in drawers. Several of the drawers are slightly open.
[28] At the threshold of the master ensuite bathroom is a blood-stained towel. There are also blood spots around the sink in the bathroom.
[29] As part of the investigation, the scene was treated with Leuco Crystal Violet (LCV) to examine for indications of blood. Trace blood not ordinarily visible was enhanced through this technique. Additional blood staining and a footprint can be seen in those photographs.
Ms. Guisalta’s Arrest
[30] On November 4, 2020, Ms. Guisalta was arrested for second-degree murder. A search warrant was executed on her apartment on Wilson Avenue in Toronto. Two cellular phones were located on the main bed in the bedroom that was used by Ms. Guisalta, a white iPhone in a clear case and a black iPhone with a black case. A third cellular phone was located near the pillow area of the main bed in this bedroom, and a black Samsung phone with a black case.
[31] A grey and white stripped t-shirt was located in the wardrobe. A black and blue Nike duffle bag was located under the bed in the shared bedroom.
Ms. Dong Wei
[32] Ms. Dong Wei was Mr. Sadeghieh’s neighbour. They lived in semi-detached residences that shared a wall. She knew him as “Mike” and would see him on occasion, including one time when she was invited into his residence to see some recent renovations that had been completed. On another occasion, she had texted him to keep the noise down on his television and he replied apologizing and advised that relatives were at his residence and that he would tell them to turn down the volume.
[33] She knew that Mr. Sadeghieh drove a black SUV which was usually parked in the garage. She did not know if he was married or had a partner. She did not see friends or family at the residence.
[34] Ms. Wei recalled that on the evening of October 19-20, 2020, she went to bed late, around 11:30 p.m. At around 12:40 a.m., she heard voices coming from Mr. Sadeghieh’s bedroom. Ms. Wei described hearing two voices, a higher-toned female voice and lower-toned male voice. It sounded like they were arguing and yelling. The voices were loud and very fast. They sounded angry. She also heard several noises against the wall and it sounded as though someone had fallen. She thought that perhaps something was wrong and thought to send Mr. Sadeghieh a text. She checked her security camera and did not see a car in his driveway. Things then went quiet, so she decided not to send a text.
[35] The voices carried on for approximately 10 minutes and were followed by silence. She recalled the time because she looked at her phone when she was awoken by the noise.
John Fidelino
[36] Mr. Fidelino was a friend of Ms. Guisalta’s. He knew her as Anne Garcia. At the time, they had known each other for approximately five years. He would see Ms. Guisalta regularly on Fridays, when they would hang out at a local park with some friends.
[37] He recalled that on a night in 2020, Ms. Guisalta texted him and asked if he wanted a car. She then arrived at his home driving a black Honda CRV. Ms. Guisalta was with N.S., whom he knew as T. Mr. Fidelino saw no injuries on Ms. Guisalta at the time and did not notice any blood on her.
[38] According to Mr. Fidelino, Ms. Guisalta was looking for someone who was willing to buy or take the Honda CRV. He asked her where she got the vehicle from, but she did not answer. Ms. Guisalta appeared rushed, edgy and panicky, though he believed this was related to the cold weather and the fact that she was wearing shorts.
[39] Mr. Fidelino took possession of the vehicle and parked it behind his apartment. He did not believe that Ms. Guisalta would get him involved with a stolen car, though it occurred to him that the vehicle might be stolen. He explained that he trusted Ms. Guisalta.
[40] Mr. Fidelino gave Ms. Guisalta some marijuana as a gift for N.S.’s birthday. He also gave her a “stone” of meth. When asked whether he gave her the drugs in exchange for the car, he said “no” and explained that he gave the drugs “freely.” He agreed that the vehicle was obviously worth more than the drugs he gave her.
[41] Mr. Fidelino identified four groups of text messages he exchanged with Ms. Guisalta on October 21 and 22, 2020. In the third group of messages, Ms. Guisalta asked Mr. Fidelino whether he was able to change the licence plate on the vehicle. She also asked him about a “tracking device” on the vehicle. He told her he would give her seven grams of marijuana later. He explained that he simply decided to give her more marijuana “in addition to what I gave her initially for the car.” He then reiterated that the initial marijuana was for N.S.’s birthday.
[42] In the fourth group of messages, Mr. Fidelino responded that he had “removed everything.” Despite texting this, Mr. Fidelino testified that he never removed the licence plate, nor did he look for a tracking device. He grew nervous as he believed the vehicle was stolen. He admitted that he painted the rims on the vehicle a different colour and agreed that he did this to disguise the vehicle.
[43] Mr. Fidelino agreed that he drove the Honda CRV and loaned it to friends. He noticed that there were various items inside the vehicle, including sleeping bags and jackets. He noted a wallet that had credit cards and identification. The wallet did not belong to Ms. Guisalta. Mr. Fidelino used the credit cards on a couple of occasions to buy cigarettes. He recognized the name on the identification as Mr. Sadeghieh.
[44] Following receipt of the vehicle and the initial exchanges of text messages, Mr. Fidelino had no further communication with Ms. Guisalta. According to him, she stopped returning his calls.
[45] The Honda CRV in Mr. Fidelino’s possession was eventually retrieved and searched by police. It contained various items of men’s clothing that did not belong to Mr. Fidelino or Ms. Guisalta. These items were located under a blanket in the trunk of the vehicle.
[46] The vehicle was also littered with McDonald’s refuse and banking documents in the names of a variety of different people. These documents did not to belong to Mr. Sadeghieh.
[47] A disclosure package relating to Mr. Fidelino’s criminal charges was located in the vehicle, as was a Canada Post shipping alert in his name. A pipe, commonly used to consume meth, was also located within the vehicle. It did not belong to Mr. Sadeghieh.
N.S.
[48] N.S. is Ms. Guisalta’s former girlfriend. In 2020, she was dating Ms. Guisalta. She was 17 years of age and Ms. Guisalta was 27. N.S. worked at Tim Hortons and lived at her mother’s residence. She met Ms. Guisalta through Ms. Guisalta’s sister, Charlene, whom she had dated earlier. She would refer to Ms. Guisalta as “Maine” or “Anne”.
[49] On October 17, 2020, a birthday party was held for N.S. at Ms. Guisalta’s apartment. Ms. Guisalta was initially at the party but then left, indicating that she was going to buy alcohol. She was not present when it was time to blow out the candles on the birthday cake. N.S. was mad over her absence. Ms. Guisalta later returned but it was late. She was supposed to have a gift for N.S. but did not end up giving her one.
[50] In the early morning hours of October 20, 2020, N.S. received a message from Ms. Guisalta telling her to come downstairs. N.S. exited the apartment and took the elevator down to the lobby. She saw Ms. Guisalta pulling up in a car she did not recognize. She asked Ms. Guisalta who the car belonged to, and Ms. Guisalta told her she needed to enter the car before she would answer the question.
[51] N.S. entered the car and Ms. Guisalta told her she had killed someone. N.S. could not remember the exact words Ms. Guisalta used but recalled that she stated that the person was trying to flirt with her in a way that she did not want and he was giving her a pill that she did not want to take. She explained that it was self-defence for what he was doing to her. She did not want the flirting and did not want to be touched “in that way.” N.S. clarified that Ms. Guisalta did not say that she had been touched. He was trying to give her a pill, flirt with her and touch her. N.S. inferred from the discussion that he had tried to touch Ms. Guisalta.
[52] N.S. recalled Ms. Guisalta stating that she had stabbed the person once in the neck, though N.S. was not certain on the number.
[53] N.S. recalled that Ms. Guisalta had the red pill in the pocket of her jeans. N.S. noticed a bruise on Ms. Guisalta’s leg and asked her about it. Ms. Guisalta explained that she was trying to clean up blood and tripped or slipped which resulted in the bruise. N.S. noticed no other bruises or injuries on Ms. Guisalta. She noticed some blood on Ms. Guisalta’s shirt but was unclear if she remembered seeing other areas of blood. She described Ms. Guisalta’s demeanour as calm and described her tone of voice as pretty calm.
[54] N.S. suggested that they drive to Niagara Falls, though she was not sure why she said this. They drove part of the way there and decided to turn around and return to Toronto. They were driving the Honda CRV. They turned around when they saw a police car and Ms. Guisalta became scared.
[55] Ms. Guisalta and N.S. then drove to Mr. Fidelino’s residence where Mr. Fidelino and Ms. Guisalta spoke privately. When N.S. exited the vehicle, Ms. Guisalta told her to grab the “gadgets” that were in the car. N.S. put the gadgets in a bag and took them with her. Ms. Guisalta told N.S. to wait and call an Uber.
[56] N.S. understood that the gadgets were items that Ms. Guisalta had taken from the deceased’s house. They included a Canon camera, a Microsoft laptop, a tablet and an iPhone.
[57] In the days following, N.S. and Ms. Guisalta were together at Ms. Guisalta’s apartment. Ms. Guisalta remained pretty calm. According to N.S., she was using an app called iRing to check inside the deceased’s home to see if his body had been discovered. She was also checking the news.
[58] At some point, Ms. Guisalta showed N.S. the knife she used to stab the deceased. Ms. Guisalta had the knife in the pocket of her jean jacket. The knife was a “regular knife found in the kitchen” and used to cut bread or mince garlic. The knife was deformed “at the tip.” N.S. thought it had a light blue handle. She had never seen the knife before.
[59] According to N.S., Ms. Guisalta threw the knife down the garbage chute. She could not recall when this occurred, though she recalled that items of clothing belonging to the deceased were also thrown down the chute at this time.
[60] Some time later, N.S. and Ms. Guisalta had a sleepover at N.S.’s mother’s apartment. Ms. Guisalta brought the gadgets with her, though they were now in a red Goodlife Fitness bag instead of the black bag. The outfit Ms. Guisalta had been wearing on the night of the stabbing was also in the bag.
[61] Ms. Guisalta indicated that she was planning on selling the gadgets and she asked N.S. to take photographs of them. Ms. Guisalta reset the tablet and gave it to her daughter. She also tried to reset the laptop.
[62] N.S. acknowledged that she was charged with two counts of possession of stolen property in relation to Mr. Sadeghieh’s vehicle and property. She agreed that she ended up getting in trouble because of Ms. Guisalta. She described being ashamed and embarrassed over her involvement.
K.L.
[63] Ms. K.L. is Ms. S’s mother. She met Ms. Guisalta, whom she knew as Anne, in March of 2020 and was aware that her daughter, N.S., was dating Ms. Guisalta and had previously dated Ms. Guisalta’s sister. On weekends, she would go to Ms. Guisalta’s apartment on Wilson Avenue to visit. At that time, N.S. was mainly living at the Wilson Avenue apartment, though she would also stay at her mother’s apartment.
[64] K.L. recalled going to a birthday celebration for her daughter at Ms. Guisalta’s apartment. A number of friends were present, though Ms. Guisalta arrived late.
[65] A week or so after the party, K.L. recalled a time when Ms. Guisalta and N.S. came over to her apartment and stayed the weekend. Ms. Guisalta brought a red Goodlife Fitness bag with her.
[66] At some point after the sleepover, K.L. discovered a number of electronic gadgets including headphones, a camera, and a tablet. The items were inside a box that was in the sitting area of her apartment. The box was usually used to store documents.
[67] When K.L. discovered the items, she became concerned. After obtaining legal advice, she contacted police and turned the items over. Included in the items she turned over was a red hat, blue jean jacket and a pair of “slippers.” There was also a Surface tablet, an iPhone, a camera, notebook, headphones and an Amazon display and cable.
[68] After the items were turned over to police, her daughter N.S. was arrested.
Pathology Evidence on Cause of Death
[69] Dr. Tyler Hickey is the forensic pathologist who conducted the autopsy on Mr. Sadeghieh’s body. He opined that the cause of death was multiple stab wounds resulting in exsanguination.
[70] Dr. Hickey noted that Mr. Sadeghieh was approximately 5’8” in height and weighed approximately 124 pounds.
[71] In terms of injuries, Dr. Hickey noted 28 sharp force injuries, which were described in detail in his evidence and depicted both in pictures and on pathology sketches. The majority of the wounds were located around Mr. Sadeghieh’s head, neck and back. Three superficial wounds were on the front of Mr. Sadeghieh’s body. Dr. Hickey opined that these injuries could have been caused by a knife.
[72] Many of the wounds would not have been fatal on their own. However, some of the wounds were significant. First, there was a stab wound to the right side of the neck that incised the jugular vein. This type of wound would result in death in the absence of near instantaneous medical attention.
[73] There was also a stab wound to the middle back area that caused a fractured rib. The wound entered the thoracic cavity and resulted in a collapsed lung. If this type of injury was left untreated, it could cause or contribute to death.
[74] A third stab wound transected the left side jugular vein, terminating at the spine. The combination of the injuries to the jugular would make it increasingly less likely that the event would be survivable.
[75] While a person sustaining these injuries would not immediately lose the ability to fight back, over a period of “many seconds to minutes” they would suffer an altered state of consciousness and weakness from loss of blood. Eventually, there would be a loss of consciousness followed by death.
[76] Dr. Hickey also noted an incised wound on the left thumb and palm area and another on the dorsal or back side of the left hand. He opined that these wounds could have been caused by way of defensive posture while being assaulted. He agreed that these wounds could have been caused when Mr. Sadeghieh used his hands to cover his face.
[77] Lastly, Dr. Hickey noted 14 blunt force injuries that were on Mr. Sadeghieh’s head, face, shoulders, neck, back, arms and left hand. He could not opine on what specifically caused the injuries, though he explained they could have been caused by coming into contact with a hard object such as a floor, bedframe, television stand or nightstand.
[78] Dr. Hickey could not opine on the temporal order of the injuries. He also could not opine on how long it would have taken to inflict the injuries. He agreed that it was likely that the orientation between Ms. Guisalta and Mr. Sadeghieh would not have been static through the infliction of all the wounds. He also agreed that the wounds would have bled profusely.
Forensic Testing of Items Seized During Investigation
[79] A number of items that were seized and swabbed during the investigation were sent to the Centre of Forensic Sciences (“CFS”) for examination. Roger Frappier, a biologist at the CFS, examined 20 items submitted by York Regional Police in relation to this case.
[80] Through the course of examination, a single source male DNA profile was developed, and it is agreed that Mr. Sadeghieh could not be excluded as the source of this male DNA profile. Ms. Guisalta provided a consent sample of her DNA to police for comparison purposes.
Items Seized from K.L.’s Apartment
i) Brown Sandals
[81] Blood staining was located on both the underside of the left brown sandal strap and the toe area of the right sandal. A swab was also taken from the insole of the left sandal. Mr. Sadeghieh could not be excluded as a contributor to the DNA profiles developed from these samples. Ms. Guisalta could not be excluded as a contributor to the DNA profile from the swab of the left insole. The transfer persistence of the blood on the sandals suggest that it was deposited as liquid and absorbed into the material.
ii) Denim Jacket
[82] A swab was taken along the seam of the inside collar of the denim jacket. DNA was detected, however it was not DNA from blood. DNA can be obtained from a number of sources, including but not limited to skin cells, mucous, and other bodily fluids. Mr. Sadeghieh could not be excluded as a contributor to the DNA profile developed from this sample.
iii) Red Baseball Hat
[83] A swab was taken from the inside of the headband. DNA was detected, however no blood was detected. Ms. Guisalta could not be excluded as a contributor to the DNA profile developed from this sample.
Items Seized from Mr. Sadeghieh’s Residence
i) Black underwear with red lips
[84] A cut out of the front crotch area of these underwear was examined. Ms. Guisalta could not be excluded as a contributor to the DNA profile developed. However, it is agreed that result establishes that it is more likely than not that she is not a source of this DNA mixture.
ii) Black Calvin Klein Underwear
[85] A stain inside near the left leg opening was examined and Mr. Sadeghieh could not be excluded as a contributor to the DNA profile developed. Two other areas on the underwear were tested and Ms. Guisalta was excluded as a contributor.
Ms. Guisalta’s Evidence
[86] At the time of trial, Ms. Guisalta was 29 years of age. She was born in the Philippines and came to Canada in 2014. She has two children that live with her in Canada. She has three additional children who live in the Philippines. She is married to the father of four of her children, Mr. Eugene Samonte. They are separated and he currently resides in the Philippines. Ms. Guisalta has a high school education which she completed in the Philippines.
[87] In October of 2020, Ms. Guisalta was unemployed but was looking for work in the computer technology or IT field.
[88] Ms. Guisalta explained that she met Mr. Sadeghieh on an online dating site, either Hi5 or Tag. She could not recall how long she had been on the dating site. She explained that she was not very active and Mr. Sadeghieh was the only person she met. Ms. Guisalta denied that she was using the website for the purpose of dating. She explained that she wanted “to try the numbers on that website.” She later clarified that this related to trying to use fake credit card numbers.
[89] Ms. Guisalta could not recall what her dating profile said about her, though she recalled that she had at least one photograph of herself on the website. She recalled that Mr. Sadeghieh had a profile on the website. She could not recall any details of his profile but recalled that he was wearing a black suit in the photo. She could not recall how she and Mr. Sadeghieh came into contact on the website but recalled that he sent her a message. She did not respond initially but responded a couple of nights before they met up at his residence.
[90] Ms. Guisalta indicated that she gave Mr. Sadeghieh her WhatsApp contact and that he tried to contact her through that app on many occasions, but she did not respond. When asked to explain how it was that she ended up arranging to see Mr. Sadeghieh on October 19, 2020, Ms. Guisalta explained that she and Mr. Sadeghieh engaged in a discussion about his work and when she said she was interested in IT, he offered to help her look for work. Her plan was to meet him for this purpose.
[91] In terms of the events of October 19, 2020, Ms. Guisalta understood that Mr. Sadeghieh would pick her up and that they would return to his home. She trusted him because she thought he was a good person. She explained that he picked her up at around 7:45pm “because it was dinner time.” She could not recall the exact time she arrived at Mr. Sadeghieh’s home but recalled that they entered through the garage. This was the first time she had been to his home.
[92] Once they entered the home, she and Mr. Sadeghieh went to the kitchen area. Mr. Sadeghieh removed his jacket and began “fixing” things in the kitchen. According to Ms. Guisalta, she was “still not removing” any of her clothing at this time. Mr. Sadeghieh then toured Ms. Guisalta through the home and they then returned to the kitchen, where he served Chivas liquor. She had “only a little.” Mr. Sadeghieh drank more than she did. He also took a pill that he retrieved from a paper bag in the kitchen.
[93] After Mr. Sadeghieh took the pill, he became more aggressive and he wanted her to remove her jacket. He removed her hat and placed it on the kitchen table. Mr. Sadeghieh had purchased steak that they were supposed to cook outside on the barbeque, but Ms. Guisalta was tipsy and it was raining so they never cooked the steak. She recalled eating an orange and recalled that Mr. Sadeghieh had a pastry of some sort.
[94] When asked where she went after the kitchen, Ms. Guisalta explained that Mr. Sadeghieh called her up to his bedroom on the third floor. She explained that she did not want to go upstairs but he was holding her by the right arm at the area of the elbow.
[95] Once in his bedroom, she sat on the right side of the bed where there was a nightstand with a pill bottle on it. There was a blanket on the bed at the time. Mr. Sadeghieh was standing in front of her and facing her. Ms. Guisalta explained that the lights were off in the bedroom but there was some light coming from the ensuite bathroom.
[96] According to Ms. Guisalta, Mr. Sadeghieh then offered her a pill from the bottle that was on the nightstand. She agreed that the pill she later showed N.S. was the pill that Mr. Sadeghieh offered her, and it appeared to be the same type of pill as the one seen in the photograph showing the open bottle of Tylenol on the nightstand. She explained that Mr. Sadeghieh wanted her to take more than one pill “because he knew I was tipsy and dizzy.” She did not swallow the pills as she did not know what they were.
[97] Mr. Sadeghieh then started to hold her and touched her breast. She was wearing a bra, shirt and jacket and his hand was overtop of her clothing. He tried to kiss her but she tried to avoid it. He ended up kissing her cheek on the left side of her face. He did not touch her anywhere else as she did not want to be touched. He then told her that if she did not allow him to have sex with her, he was going to kill her. Ms. Guisalta explained that when Mr. Sadeghieh told her he wanted to have sex, he had removed all his clothing.
[98] When he threatened her, he had a pocketknife in his hand which he had retrieved from the nightstand next to the bed. She could not remember how long the knife was but knew it was a knife that could be folded. The knife was open when it was in Mr. Sadeghieh’s hands. She did not see it folded. Mr. Sadeghieh pointed the knife in the middle of her chest. Ms. Guisalta was afraid and believed he would kill her so she tried to get away.
[99] Ms. Guisalta explained that she and Mr. Sadeghieh fell on the bed and then ended up on the floor at the foot of the bed. Mr. Sadeghieh was to her left. She was trying to get out of the bedroom, but he chased her and held on to her. The knife ended up on the floor between them.
[100] Once they were at the foot of the bed, Ms. Guisalta saw the knife that Mr. Sadeghieh had dropped. She stated, “that’s the time that I had the chance to defend myself.” She picked up the knife and stabbed Mr. Sadeghieh. She could not recall how many times she stabbed him. When asked by counsel whether she realized that she had stabbed him “that many times,” she replied, “No, no more, sir, because I lost my mind.”
[101] She explained that the stabbing took place in different parts of the bedroom. She was asked directly whether Mr. Sadeghieh was ever on the bed when she stabbed him and she explained that when she first stabbed him, he leaned on the bed before he stood up. Ms. Guisalta agreed that there was a period of time when she and Mr. Sadeghieh were yelling and shouting.
[102] She recalled that Mr. Sadeghieh tried to take the knife from her. She explained that she stabbed him “because that’s the only way I know that I can defend myself.”
[103] Ms. Guisalta suffered a bruise to her right knee when she fell down. She noticed the bruise a few days after the incident.
[104] She recalled seeing that Mr. Sadeghieh had stopped breathing, but she could not recall how long this was after the stabbing. Once she realized he was dead, she was scared. She did not call the police because she was afraid that they would not believe her.
[105] Ms. Guisalta next went to the bathroom, where she used a towel and washed the blood off her hands, foot and leg. She believes she only used one towel which she then left on the floor.
[106] After washing off the blood, Ms. Guisalta checked the pockets of Mr. Sadeghieh’s pants for the key for his vehicle. It was not there. She then checked his jacket which was in the kitchen and she found the key. She then used his vehicle to leave the home.
[107] Prior to leaving, she took a number of gadgets which were on the counter in the kitchen. These gadgets included a laptop, an “Echo show” digital frame, headphones, a camera and a tablet. She explained that she took all these gadgets because when they had first arrived at the home, she had observed that Mr. Sadeghieh was checking “everything for the CCTV.” She believed that he had security cameras in the home and she wanted to remove the footage showing that she had been there.
[108] After taking Mr. Sadeghieh’s vehicle, Ms. Guisalta drove to a Burger King to use Wi-Fi in order to contact N.S. She told N.S. to come down to the lobby to wait for her. At this time, Ms. Guisalta did not have her apartment key with her.
[109] Once N.S. was in the vehicle, they drove towards Niagara Falls. It was N.S.’s idea as she wanted to go for a road trip or joyride. Ms. Guisalta told N.S. that she got the vehicle from “the guy [she] killed.” She explained to N.S. that the guy wanted to have sex with her and had threatened to kill her if she did not. She told N.S. that she “did it” in self-defence.
[110] Ms. Guisalta and N.S. did not make it all the way to Niagara Falls. Ms. Guisalta was not comfortable driving and was scared. That is when she decided to contact John Fidelino in order to dispose of the vehicle. She believed that Mr. Fidelino would remove the licence plate and “everything on” the vehicle. She maintained that she did not ask for anything in exchange for the vehicle though Mr. Fidelino gave her a bag of marijuana for N.S., and one gram of meth for her. He also promised to give her $700.00, though she claims she did not ask him for this money.
[111] Ms. Guisalta was aware that N.S. took items from the vehicle, like shoes and other things, and put them in a gym bag. Ms. Guisalta had asked N.S. to get the gym bag because that is where she had put the gadgets. Ms. Guisalta knew that Mr. Sadeghieh’s jacket and wallet were in the vehicle.
[112] After Mr. Fidelino took the vehicle, Ms. Guisalta and N.S. took an Uber back to her apartment. Ms. Guisalta took the bag with the gadgets to her apartment where she checked the various devices. Later on, while at N.S.’s apartment, she “removed all the footages” from the various devices by wiping them electronically. The wiping was done at N.S.’s apartment because there were too many people present at Ms. Guisalta’s apartment. According to Ms. Guisalta, the plan was to dispose of the various gadgets as well as the items of clothing that she brought to N.S.’s apartment.
[113] In terms of the knife that was used to stab Mr. Sadeghieh, Ms. Guisalta explained that she disposed of the knife on the way to her apartment and prior to meeting up with N.S. She denied disposing of the knife down the garbage chute in N.S.’s presence.
Cross-Examination
[114] Ms. Guisalta was asked to explain what it meant to “test the numbers” on a dating site. She explained that she would try to guess credit card numbers and their corresponding CCV or BIN numbers. She would then test the numbers she came up with on the dating site in order to see whether she had come up with a credit card number that worked. She explained that she liked doing this but did not use the credit card numbers to make purchases for herself.
[115] Ms. Guisalta agreed that she had no training in IT and had never worked in the IT field. She did not have a post-secondary education and had last been employed in 2016 or 2017. She was supporting herself with money that came from the Philippines each month and through certain benefits and tax credits in Canada.
[116] In terms of her interactions with Mr. Sadeghieh, Ms. Guisalta agreed that when she left her apartment to meet him, she told no one where she was going. She had never met Mr. Sadeghieh before. She had a cell phone with her, but it did not have a data plan. She knew that she would be going with him to his home.
[117] Ms. Guisalta was challenged on her suggestion that she was meeting Mr. Sadeghieh with a view to getting a job in the IT field. She agreed that job interviews do not occur at a person’s house. She agreed that when she left her apartment, she was wearing sandals, a denim jacket, shorts, a grey and white striped shirt, and a red hat with her hair in a tight bun. She further agreed that she did not have anything, such as a pen, notepad or computer, with her when leaving her home.
[118] In terms of the alcohol consumed while at Mr. Sadeghieh’s home, Ms. Guisalta agreed that she drank some Chivas liquor but did not drink very much. When pressed on the quantity of alcohol she consumed, Ms. Guisalta suggested she was doing “shots” but added, “I don’t remember how often or how many, but its just a small amount. That’s why I wasn’t able to finish mine.”
[119] Ms. Guisalta was asked about the conversation she had with Mr. Sadeghieh while in the kitchen. She recalled that he spoke about IT work, but she could recall no details. She could not recall any other topics of discussion. She could not recall how long the discussion lasted.
[120] Ms. Guisalta agreed that when she toured through Mr. Sadeghieh’s home she noticed it was fancy and that he had nice things, including a nice television and nice furniture. She also noticed that Mr. Sadeghieh appeared to be wearing a nice suit in his profile picture.
[121] Ms. Guisalta was asked what happened in between the time she had the tour of the home and when she was taken upstairs to the bedroom by Mr. Sadeghieh. She explained that they were in the kitchen, talking and drinking.
[122] Ms. Guisalta denied that she and Mr. Sadeghieh spent time watching TV, though she agreed that he turned the television on. When shown security camera video from outside Mr. Sadeghieh’s residence which appears to show lights flickering in one of the windows, Ms. Guisalta was not certain if the flickering lights came from the TV. She recalled that Mr. Sadeghieh also turned on the fireplace, though she denied that they spent time in front of the fireplace. She maintained that apart from touring the residence, the only two places she recalled spending time in was the kitchen and bedroom.
[123] In terms of how she ended up in Mr. Sadeghieh’s bedroom, Ms. Guisalta explained that he held her by the left arm, near the elbow. When asked whether it is possible that she was upstairs for a much longer period of time than she described, she replied, “I don’t know.”
[124] Ms. Guisalta confirmed that she sat down on the bed, with Mr. Sadeghieh standing in front of her. Apart from her hat being removed by Mr. Sadeghieh while in the kitchen, she kept all of her clothing on. Ms. Guisalta explained that Mr. Sadeghieh tried to touch her breast and kiss her. She did not say anything. She then turned her head to the side, and he kissed her. She was “tipsy at that time” and did not stand up. The next thing that happened is that Mr. Sadeghieh took the knife from the drawer and said, “You’re going to have sex with me or I’m going to kill you.” Ms. Guisalta could not recall how quickly this happened upon entering the bedroom.
[125] After Mr. Sadeghieh threatened her, Ms. Guisalta decided to get up and run. Mr. Sadeghieh caught her by the foot and she fell down in the area between the foot of the bed and the television stand. The knife fell on the floor and was between Ms. Guisalta and Mr. Sadeghieh. She grabbed the knife and stabbed him. She had absolutely no memory of where she stabbed him. She could not recall how his body was positioned when she left the bedroom.
[126] Ms. Guisalta did recall that after the stabbing, she went from the bedroom to the bathroom where she washed her hands and legs. She then went “right back downstairs” where she collected all the gadgets she found in the kitchen. She then got into Mr. Sadeghieh’s car and left. It was approximately 1:12 a.m. when she left.
[127] Ms. Guisalta denied that the encounter with Mr. Sadeghieh was a date. She further denied that the plan was to go to his home for a steak dinner, though she agreed that Mr. Sadeghieh had steak ready to be cooked. She denied that the reason why she told no one where she was going was because it was a date that would not meet with either her mother’s or her girlfriend’s approval.
[128] Ms. Guisalta agreed that she consumed some alcohol and some of an orange Mr. Sadeghieh cut up for her. She denied that they sat on a couch and watched television while cuddling. She denied “taking things upstairs” to his bedroom and denied that they both took off their clothes and got into bed to fool around. She denied that when he suggested sex, she said she had a headache and was not in the mood. She denied that he offered her Tylenol for the headache. She denied going to the kitchen to get a glass of water and a kitchen knife. She denied asking him to take her home. She denied stabbing Mr. Sadeghieh while Mr. Sadeghieh was on the bed. She denied that he tried to push himself away from her on the bed after he was stabbed. She denied that she simply attacked him.
[129] When asked to explain the large blood stain that appears in the middle of the bed, Ms. Guisalta explained that when she stabbed Mr. Sadeghieh by the television cabinet at the foot of the bed, he leaned over the bed while trying to stand up.
[130] Ms. Guisalta agreed that she took an Echo frame, a Surface tablet, an iPhone 11 Pro and other electronic items. She maintained that she took these items because she thought they might have access to the home surveillance system. She denied that she took the gadgets because they looked fancy or expensive. She denied that once she cleaned up after killing Mr. Sadeghieh, she went to the back bedroom where she found the black and blue duffle bag. She denied that she put all the items in the black and blue duffle bag.
[131] Ms. Guisalta agreed that she contacted Mr. Fidelino in order to give him Mr. Sadeghieh’s vehicle. She agreed that before meeting Mr. Fidelino she left N.S. at a bank with the duffle bag containing the gadgets. She agreed that in the video showing her and N.S. returning to her apartment, she is wearing the same clothing as she was earlier that evening. She agreed that no blood or bruising is visible on her in the video, though she noted that in the video she points out some blood on her knee to N.S.
[132] Ms. Guisalta agreed that in the days following the incident she checked Mr. Sadeghieh’s home surveillance system to see if his body had been discovered. She also agreed that she reformatted his electronic devices.
[133] In terms of the disposing of items, Ms. Guisalta agreed that items belonging to Mr. Sadeghieh were thrown down the garbage chute. She denied that this is when she disposed of the knife used to stab Mr. Sadeghieh. She denied that she threw out the blue shorts she was wearing because they had blood on them from when she put them back on. She denied that the reason why she did not throw out her jacket, t-shirt and hat was because she did not see any blood on them. She further denied that these items did not have blood on them because she was not wearing them at the time of the stabbing. Ms. Guisalta agreed that the scene inside Mr. Sadeghieh’s bedroom was bloody.
[134] In re-examination, when asked whether she recalled entering the spare bedroom after Mr. Sadeghieh was dead, Ms. Guisalta indicated that she could not recall. She also could not recall whether she turned on the light in that spare bedroom, though she added that she did recalled that the light in that room was automatic. She denied giving the car to Mr. Fidelino so he could sell the car. She clarified that when she was in the elevator pointing to her knee, she was showing N.S. the bruise on her knee, though she later also saw some blood on her calf.
Dr. Philip Klassen
[135] The defendant also called Dr. Klassen to testify on a narrow issue relating to post-traumatic stress in the context of sexual assault. He conducted a psychiatric assessment of Ms. Guisalta that included a number of non-forensically validating questionnaires that measure trauma symptoms. The testing he administered suggested that Ms. Guisalta meets the diagnostic criteria for post-traumatic stress disorder (PTSD), though he noted there were issues with clinically corroborating her version of events as well as caveats regarding her self-report. He also noted that the testing showed that she had anxiety and depressive symptoms.
[136] Dr. Klassen noted that when he spoke to Ms. Guisalta about the events relating to Mr. Sadeghieh’s death, she spoke with anxiety and emotion. He hypothesized that there may be a traumatic element to Ms. Guisalta’s memories. He explained that in forming his opinion, he accepted her evidence at face value. He also noted that there is some literature suggesting that people can get PTSD through events they commit, rather than events they are the victims of. He could not say whether she does or does not have PTSD but noted that it was conceivable.
[137] Dr. Klassen noted that an inability to recount the details of a story would be an element of PTSD. He agreed that if Ms. Guisalta had PTSD, it was conceivable that she could fail to remember some details for a half-hour period around the time of the stabbing, though it would not cover four and half hours. That degree of memory compromise would not be expected.
[138] Dr. Klassen explained that if there was no precipitating threat and/or sexual assault and only a very bloody, horrific stabbing, it would be substantially less likely that Ms. Guisalta would have PTSD. He noted that she presented with issues that made it challenging for him to get a real sense of her mental state. He confirmed the conclusion noted in his report which stated, “…it appears that Ms. Guisalta experienced explosive anger and high anxiety/fear” at the material time. Dr. Klassen agreed that explosive anger, anxiety and fear, are everyday human emotions that would not require his level of expertise to be understood.
THE APPLICABLE LEGAL PRINCIPLES
Culpable Homicide
[139] A homicide is committed when a person, directly or indirectly, causes the death of another person. A homicide can be culpable or non-culpable. A culpable homicide is one that is caused unlawfully, see section 222 of the Criminal Code. Culpable homicide includes murder and manslaughter.
[140] A culpable homicide is murder where the accused causes the death of another person and either (a) means or intends to cause their death, or (b) means or intends to cause them bodily harm that they know is likely to result in death and are reckless as to whether death ensues or not, see section 229(a)(i) and (ii) of the Criminal Code. The difference in the mental elements set out in section 229(a)(i) and section 229(a)(ii) is “too slight to warrant distinction”, see R. v. Moo, 2009 ONCA 645 at para. 47 and R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074 at pp. 1087-1088. The requirement in section 229(a)(ii) that the accused be “reckless” as to whether death ensues is essentially a redundant requirement, as a person who intends to cause bodily harm that he or she knows is likely to result in death is invariably reckless as to whether or not death ensures, see Moo, at para. 48, Nygaard, at p. 1088, and R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146 at p. 154-155.
Assessing Credibility and Reliability
[141] There is no magic formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using a common-sense approach that is not tainted by myth, stereotype or assumption. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits; whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies and whether the inconsistencies suggest that the witness is lying.
[142] In assessing a witness’ testimony, there is a distinction between credibility and reliability. Reliability relates to the accuracy of the witness’ testimony which engages a consideration of the witness’ ability to accurately observe, recall and recount an event; see R. v. H.C., 2009 ONCA 56 at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. An incredible witness’s evidence cannot be relied on. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence; see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p. 526.
[143] Arriving at a verdict in this case requires that I determine issues of credibility and reliability, particularly as it relates to Ms. Guisalta. In doing so, I must always remain mindful that the ultimate issue is whether the Crown has proven the case against the defendant beyond a reasonable doubt.
[144] The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada many years ago in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The W.(D.) methodology is not a rigid or formalistic rule that requires rote incantation. Rather, it is an analytical framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests; see R. v. J.H.S., 2008 SCC 30 and R. v. C.L.Y., 2008 SCC 2.
[145] In applying the W.(D.) methodology, I am mindful of the following additional guidance that has been provided by the caselaw. First, the W.(D.) methodology applies not only to instances where the defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown’s case, for example, where the Crown tenders a statement by a defendant which is in part or in whole exculpatory; see R. v. B.D., 2011 ONCA 51 at para. 105.
[146] Second, in considering the first two steps of the W.(D.) analysis, the evidence of the defendant must be considered in the context of the evidence as a whole. In other words, the assessment is not simply whether the defendant’s evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (ON CA), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).
[147] Third, the second step of the W.(D). analysis is important. It emphasizes the point that there is a third alternative between complete acceptance and complete rejection of a defendant’s evidence; see R. v. J.E., 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20.
[148] Lastly, where the defence advanced contains an objective component, as is the case with self-defence, the W.(D). analysis must be modified accordingly. The defendant’s evidence will, in such instances, only result in an acquittal where that evidence establishes or leaves the trier of fact with a reasonable doubt about the objective component of the defence; see R. v. Ryon, 2019 ABCA 36 at para. 31 and R. v. Reid, (2003) 2003 CanLII 14779 (ON CA), 65 O.R. (3d) 723 (Ont.C.A.) at para. 72
[149] Applying the W.(D.) methodology to the charge of murder, I must approach the evidence before me as follows. In her testimony before the court, Ms. Guisalta asserts that she acted in self-defence when Mr. Sadeghieh sexually assaulted her and threatened to kill her. If I believe her testimony and her evidence amounts, as a matter of law, to self-defence then I must acquit her. If I don’t believe her testimony, but her evidence leaves me with a reasonable doubt about her guilt, I must acquit her. Lastly, even if I completely reject all the exculpatory portions of her testimony, I must nonetheless assess whether on the basis of the rest of the Crown’s case, I am satisfied beyond a reasonable doubt that Ms. Guisalta murdered Mr. Sadeghieh. The same methodology would apply to the consideration of the partial defence of provocation.
[150] As a final point, I note that in assessing Ms. Guisalta’s evidence, I must also guard against using a rejection of her evidence as positive evidence of guilt. Rejected evidence is simply rejected evidence. It proves nothing.
Circumstantial Evidence
[151] Where the evidence in a case is circumstantial, the Crown must prove that the accused’s guilt is the only reasonable inference available on the evidence, see R. v. Villaroman, 2016 SCC 33. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may at times be difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason.
[152] If, after all the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser and included offence, as the case may be. An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negative every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from “proven facts”, see Villaroman, at para. 35 and R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.) at para. 17. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence.
After the Fact Conduct
[153] Evidence of what an accused person did following the alleged commission of an offence is a species of circumstantial evidence which, in certain circumstances, may be capable of giving rise to reasonable inferences about what an accused did in relation to the commission of the offence, see R. v. White, 2011 SCC 13 at para. 157 and R. v. Calnen, 2019 SCC 6 at paras. 29 and 111.
[154] There is no special rule to be applied to after the fact conduct evidence. An assessment of this type of evidence involves examining the relevance and probative value of the evidence to determine whether and what reasonable inferences the evidence permits. At times, the evidence will be relevant for more than one purpose. At other times, it will only be relevant for a limited purpose.
[155] To have probative value, after the fact conduct evidence does not need to be confirmed by physical or other types of evidence, though the presence or absence of other confirmatory evidence will potentially strengthen the inferences available.
[156] The available inferences are determined by the application of logic, common sense and experience, see Calnen, at para. 112, per Martin J. dissenting, though not on this issue. The available inferences “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence, see Calnen, at para. 112, R. v. S.B.1, 2018 ONCA 807 at para. 68 and R. v. Smith, 2016 ONCA 25 at para. 77.
[157] After the fact conduct evidence must be treated with caution. The trier of fact must guard against simply jumping to a conclusion of guilt based on how the accused acted, or what the accused did after the fact. The evidence may appear more probative than it is and may encourage speculation, particularly where the after the fact conduct evidence is based on an accused’s demeanour. The temporal gap between the conduct and the alleged offence may also make inferences more difficult to draw. Lastly, the evidence may also give rise to imprecise reasoning. To address these risks, the trier of fact should carefully consider any available alternative explanations such as “panic, embarrassment, fear of a false accusation, or some other innocent explanation,” see Calnen, at paras. 116-117.
[158] Where the after the fact conduct evidence is equally consistent with the commission of two or more offences, it may not assist the trier of fact in determining which of the two offences the accused committed. Further, where the accused admits a baseline level of culpability, the after the fact conduct evidence may lose all probative value, see R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129. However, the available inferences supported by the after the fact conduct evidence, when viewed in context with the whole of the evidence, may not be equal. Indeed, it is open to the trier of fact to conclude that the after the fact conduct is more consistent with one level of culpability than another.
Self-Defence
[159] Section 34 of the Criminal Code sets out the defence of self-defence as follows:
34(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[160] Where there exists an air of reality to self-defence, the Crown must disprove self-defence beyond a reasonable doubt, see R. v. Cinous, 2002 SCC 29.
[161] The self-defence provisions have a blend of objective and subjective components that were reviewed by Martin J. in R. v. Khill, 2021 SCC 37. The provisions are comprised of three elements that can be succinctly summarized as follows:
i. The Catalyst – This element considers the defendant’s state of mind and perception of the events that led them to act. The defendant must reasonably perceive an application or threat of force against herself. On this issue, the evidence has both a subjective and objective component; the defendant must subjectively perceive the application or threat of force, but that perception must be based on reasonable grounds, in other words it must be objectively verified. The objective verification is not purely objective, rather it incorporates relevant subjective features of the accused’s personal characteristics and experiences where relevant to the defendant’s belief or actions; Khill, at paras. 53-58.
ii. The Motive – This element considers the defendant’s purpose in committing the act that constitutes the offence. The defendant must respond with a defensive purpose. In other words, what the defendant does must be in response to the perceived threat or application of force. The purpose must not be vigilantism, vengeance, or some other personal motivation. This element is assessed subjectively. This is an important inquiry because absent a defensive purpose, the rationale for the defence disappears; Khill, at paras. 59-61.
iii. The Response - The final element examines the reasonableness of the defendant’s response. In this regard, the defendant’s actions must be reasonable in the circumstances, determined in accordance with the factors set out in s. 34(2). This portion of the assessment is objective, but it too requires consideration of the relevant personal circumstances and experiences of the person and as such it maintains a subjective component. As Martin J. explains in Khill at paras. 64-65:
Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(f) and (f.1)).
Nevertheless, the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.
[162] An assessment of self-defence requires the court to examine the totality of the circumstances. A person acting in self-defence is not held to a standard of perfection, see R. v. Cunha, 2016 ONCA 491, at para. 24-25.
Provocation
[163] The partial defence of provocation is set out in section 232 of the Criminal Code, which provides as follows:
Murder reduced to manslaughter
- (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
Questions of fact
(3) For the purposes of this section, the questions
(a) whether the conduct of the victim amounted to provocation under subsection (2), and
(b) whether the accused was deprived of the power of self control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
[164] In R. v. Tran, 2010 SCC 58 at paras. 23-38, the Supreme Court outlined the four components of the provocation defence, the first two of which are objective elements and the last two of which are subjective elements, see also R. v. Alas, 2021 ONCA 224, R. v. Land, 2019 ONCA 39 and R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37. The components of the defence are as follows:
a. there must be a wrongful act or insult;
b. the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;
c. the defendant must have acted in response to the wrongful act or insult; and,
d. the defendant must have acted on the sudden before there was time for their passion to cool.
[165] The provocation provisions were amended in 2015, and they now require that the wrongful act or insult must constitute an indictable offence with a punishment of greater than five years. The amendment does not restrict the applicability of the partial defence in this case.
[166] As with self-defence, where there exists an air of reality to the partial defence of provocation, the Crown bears the burden of disproving the defence beyond a reasonable doubt, see R. v. Rasberry, 2017 ABCA 135, at para. 55.
FINDINGS AND ANALYSIS
[167] I turn next to my findings and analysis. I will start with my factual findings based on my analysis of the credibility and reliability of the various Crown witnesses, followed by Ms. Guisalta. In doing so, I will consider the witness’ evidence in context with the whole of the evidence, including the extensive agreed statements of fact as well as the photographs and video timeline. I will then turn to assessing the issue of mens rea for murder. Following that, I will assess the evidence of self-defence. I will then consider provocation.
[168] Given the manner in which the case was presented, there are three main issues to be determined. First, has the Crown proven that when Ms. Guisalta killed Mr. Sadeghieh, she had the requisite intent required for murder? Second, has the Crown proven beyond a reasonable doubt that Ms. Guisalta was not acting in self-defence when she stabbed Mr. Sadeghieh 28 times? Lastly, if Ms. Guisalta had the requisite mens rea for murder, has the Crown disproven provocation beyond a reasonable doubt?
Key Factual Findings
[169] This was not a case where the Crown witnesses were significantly challenged either on the basis of credibility or reliability.
[170] Ms. Dong Wei’s evidence was essentially unchallenged. I accept that she was awoken at around 12:40 a.m. by the noise coming from Mr. Sadeghieh’s residence. She knew the time because she looked at her phone when she woke up. I accept that she heard a male and female voice arguing and yelling. She also heard the sound of someone falling or bumping into the wall. The arguing and yelling carried on for approximately 10 minutes and was followed by silence. I find that Ms. Wei overheard Ms. Guisalta and Mr. Sadeghieh engaged in a verbal and physical confrontation that ended with Mr. Sadeghieh’s death.
[171] K.L.’s evidence was also essentially unchallenged. There is no issue that she discovered various electronics at her home that belonged to Mr. Sadeghieh. These electronics were brought there by Ms. Guisalta, along with certain items of clothing that Ms. Guisalta had worn on the night she killed Mr. Sadeghieh.
[172] Mr. John Fidelino gave evidence regarding the manner in which he came to possess Mr. Sadeghieh’s vehicle. The core of his evidence is unchallenged. Indeed, the defence accepts that Ms. Guisalta gave him Mr. Sadeghieh’s vehicle in the early morning hours of October 20, 2020.
[173] While not much turns on it, I am satisfied that Mr. Fidelino agreed to give Ms. Guisalta money and drugs in exchange for the car. I accept her evidence that he offered to give her $700 in addition to the drugs he gave her. I reject his evidence that this was a reference to providing her with 7 grams of marijuana. She followed up with him to check on whether he had removed the licence plate and the “tracking device” she believed was installed on the vehicle. He repainted the rims on the vehicle, used it for personal trips and loaned it out to people. Ms. Guisalta was obviously concerned that the vehicle would be tracked or located, thereby connecting her to Mr. Sadeghieh. Mr. Fidelino clearly knew the car was obtained in some less than honest fashion.
[174] While both Mr. Fidelino and Ms. Guisalta deny that he paid for the vehicle, I find that they were not honest about this. Viewed in context, there would be no reason for Mr. Fidelino to just coincidentally offer to pay her $700 following receipt of the vehicle.
[175] In terms of N.S., I note that she was charged with criminal offences relating to her possession of Mr. Sadeghieh’s vehicle and property. She was charged as a young person and her charges were diverted. There is no evidence suggesting that the disposition of her charges was related to her evidence in this matter.
[176] I accept that N.S. potentially had a motive to make herself look less involved in relation to these events. However, I accept her evidence. I find that she was truthful in recounting it.
[177] In particular, I accept that when she met Ms. Guisalta on October 20, 2020, Ms. Guisalta told her that she had killed someone by stabbing them in the neck. As N.S. stated, Ms. Guisalta told her she acted in “self-defence” when the person tried to touch her, kiss her and give her pills. I find that Ms. Guisalta did not tell N.S. that Mr. Sadeghieh threatened her with a knife, despite Ms. Guisalta’s evidence to the contrary.
[178] I also accept N.S.’s evidence that she was present when items belonging to Mr. Sadeghieh were discarded down the garbage chute at the apartment. I find that this is when the knife that was used to kill Mr. Sadeghieh was disposed of. N.S. would have no reason to make up a version of events that falsely implicated herself in the destruction of the murder weapon. As such, I accept her description of the knife as a small kitchen knife with a light blue handle and a bent tip. Importantly, I find that this knife was not a folding pocketknife. In making his finding, I also reject Ms. Guisalta’s evidence that she discarded the knife prior to meeting up with N.S.
[179] Regarding the electronic devices, I accept N.S.’s evidence that Ms. Guisalta may have planned on selling some of the devices and asked her to photograph them. In any event, it is not contested that Ms. Guisalta took steps to electronically wipe the devices which would be a step undertaken either in anticipation of selling the items, giving them to someone or otherwise disposing of them.
Ms. Guisalta’s Evidence
[180] I turn next to an assessment of Ms. Guisalta’s evidence. In short, I find that there are significant credibility and reliability problems with her evidence. It is internally inconsistent and significantly contradicted by the objective scene evidence and the timeline of events.
[181] My findings in support of this conclusion are as follows:
a. Ms. Guisalta’s evidence fails to account for the events during the lengthy period of time she was at Mr. Sadeghieh’s home. On Ms. Guisalta’s evidence, she arrives at Mr. Sadeghieh’s home, has a drink or part of a drink in his kitchen area, gets a tour of the house and is taken upstairs, where Mr. Sadeghieh threatens to kill her unless she has sex with him. According to Ms. Guisalta, this series of events appear to have happened in short order upon arriving at the home.
The difficulty with this evidence is that Ms. Guisalta was at the house for approximately five hours. She arrived at 8:11 p.m. and departed at 1:12 a.m. Mr. Sadeghieh was stabbed to death around 12:40-12:50 a.m.
Ms. Guisalta was cross-examined on this issue. She denied the suggestion that she and Mr. Sadeghieh spent time watching television or sitting in front of the fireplace. She offered no real explanation for what would have gone on for this very lengthy period of time.
This massive gap in her memory suggests both significant credibility and reliability issues with Ms. Guisalta’s evidence. There is no reason why she would not be able to remember what happened during this lengthy period of time. On her own version of events, while she was “tipsy”, she consumed only a small amount of alcohol and did not finish her drink. She did not take the pills offered by Mr. Sadeghieh. There is no suggestion in her evidence that there may be any other reason why she cannot remember what happened or blocked it out. The reality is that Ms. Guisalta is unwilling to share what happened inside Mr. Sadeghieh’s home during the hours she was there.
b. Ms. Guisalta’s explanation for the nature and purpose of her meeting with Mr. Sadeghieh is illogical and unbelievable. On her version of events, she meets Mr. Sadeghieh on an online dating site, which she is using to test fake credit card numbers and not for the purpose of dating. He pursues her and sends her repeated messages. She does not recall any details of her interactions with him during this time. She agrees to meet with him but maintains that it is not a date. Instead, she explains that she is going to meet him in order to potentially get career help to pursue her goal of getting a job in the IT field.
Viewed in context, this evidence makes no sense. Mr. Sadeghieh purchases steak from Whole Foods. He then drives from his home in Markham to Ms. Guisalta’s apartment in Toronto to pick her up. He then returns to his home. He serves drinks and cuts an orange for Ms. Guisalta as they sit at the kitchenette table. Ms. Guisalta agrees that the steak was to be cooked but they never got around to it for various reasons. Something then went on for hours. It culminated in the stabbing death of Mr. Sadeghieh.
I reject Ms. Guisalta’s evidence that she was simply going to Mr. Sadeghieh’s house to get some help breaking into the IT field. She has no training in IT. She had never worked in the IT field. She took nothing with her to Mr. Sadeghieh’s house that related to her stated purpose, such as a computer or even a pen.
The evidence overwhelmingly suggests that this encounter was set up as a romantic date of some variety. That said, I also find that a romantic date may or may not have been Ms. Guisalta’s actual true purpose for attending at the home. I simply reject her explanation that the encounter was truthfully related towards securing a career in IT.
c. Ms. Guisalta’s description of Mr. Sadeghieh’s conduct in the bedroom does not make sense. On her version of events, she and Mr. Sadeghieh arrive in his bedroom after leaving the kitchen area. They are both fully clothed, except for Ms. Guisalta’s hat which remained in the kitchen. Ms. Guisalta is seated on the bed. Mr. Sadeghieh is standing beside the bed facing her. Ms. Guisalta has no interest in a sexual encounter. Mr. Sadeghieh offers her a Tylenol from the bottle on the nightstand. Ms. Guisalta puts the pill in her pocket instead of taking it. Mr. Sadeghieh then touches her breast and tries to kiss her. She rebuffs his advance by turning her head to the side, though she does not say anything. At this point, Mr. Sadeghieh simply reaches for a pocketknife that happens to be in the drawer of the nightstand. He points the knife at her chest and threatens to kill her unless she has sex with him. While doing this he also manages to take off all his clothes. This sequence of events makes little sense. Ms. Guisalta’s narrative of how this unfolds leaves no room for Mr. Sadeghieh to remove all his clothing. In addition, her narrative does not fit with photographs of the scene which show Mr. Sadeghieh’s socks and underwear on top of a folded blanket and pillows on the floor on the opposite side of the bed.
d. Ms. Guisalta’s evidence about the location of the stabbing is contradicted by the objective physical evidence of the scene which shows a large blood stain in the centre of the bed. According to Ms. Guisalta, the stabbing occurred on the floor at the foot of the bed once Mr. Sadeghieh dropped the knife and she retrieved it. If Ms. Guisalta is telling the truth about this, it does not explain why there is a large blood stain in the middle of the bed.
In my view, the blood stain on top of the bed supports an overwhelming inference that Mr. Sadeghieh was stabbed while he was seated on the bed and before he moved to the floor at the foot of the bed. As the Crown suggests, this blood stain also clearly shows a handprint which suggests that Mr. Sadeghieh would have been seated on the bed facing the area adjacent to the nightstand while bleeding. I reject Ms. Guisalta’s evidence that this blood stain happened when Mr. Sadeghieh leaned over the bed and tried to stand up once he was on the floor at the foot of the bed. If this had happened, one would have expected to see blood at the lower part of the mattress toward the foot of the bed, which is what is seen where Mr. Sadeghieh finally comes to rest. As well, one would not expect to see the handprint in the orientation depicted in the photographs.
This evidence significantly undermines Ms. Guisalta’s version of events. It suggests that she is not telling the truth about what happened in Mr. Sadeghieh’s bedroom. Importantly, this evidence undermines her evidence that Mr. Sadeghieh had the knife during the initial portion of the incident and used it to threaten her. I specifically reject her evidence that he used the knife to threaten her while on the bed. I find that she is lying about getting the knife off the floor once both she and Mr. Sadeghieh end up there. It was Ms. Guisalta who initially wielded the knife and not Mr. Sadeghieh. Indeed, if it had been Mr. Sadeghieh who had the knife initially, it is hard to see how Ms. Guisalta would have managed to simply take the knife off him and used it to stab him while he was seated on the bed.
e. Ms. Guisalta’s evidence that she was clothed during this entire incident is undermined by the scene evidence. The photographs depicting the scene inside the bedroom reveal a significant amount of blood on the bed and floor area where the stabbing occurred. Mr. Sadeghieh was stabbed 28 times with a small knife and at close proximity. The lack of visible blood on Ms. Guisalta’s clothing strongly suggests that she was not wearing her clothing at the time. I note that Ms. Guisalta is seen on the video after the stabbing and no blood is visible. Mr. Fidelino saw no blood on her or her clothing. N.S. recalled seeing some blood on Ms. Guisalta but was not sure where exactly. The clothing retrieved by police shows no significant blood staining, apart from minor stains to the sandals Ms. Guisalta was wearing. Lastly, Ms. Guisalta herself agrees that she had blood on her hands and legs and went to bathroom to clean it off. It seems unlikely that if she was wearing her clothing, she would have had blood on her hands and legs, but not on her clothing.
On the issue of Ms. Guisalta’s clothing, I note that the shorts she wore were never recovered. The Crown suggested to Ms. Guisalta that she disposed of the shorts because she noticed that they had blood on them. The Crown further suggested that the blood got on the shorts when Ms. Guisalta was putting them back on after the stabbing. Ms. Guisalta denied these suggestions. The Crown argues that the shorts were noticeably absent from the clothing taken to K.L.’s home. While I agree that with the Crown that the absence of the shorts is telling, I am not satisfied that Ms. Guisalta intentionally disposed of the shorts because they had blood on them.
f. I reject Ms. Guisalta’s evidence about the knife she used to kill Mr. Sadeghieh. According to Ms. Guisalta the knife was a folding pocketknife, though it was open when Mr. Sadeghieh retrieved it from the drawer. The knife Ms. Guisalta describes is not same as the knife described by N.S., whose evidence I accept. I note that N.S. described the knife as a light blue handled kitchen knife with a deformed tip. Ms. Guisalta denied that she disposed of the knife, along with other items, while in N.S.’s company, but she was entirely vague as to her version of events relating to the disposal of the knife. That said, I should add that I am unable to determine one way or another who brought the knife to the bedroom. It is possible that Mr. Sadeghieh kept a knife in his bedroom. It is also possible that Ms. Guisalta had a knife with her, especially since she was going to an unknown man’s home. It is also possible that either Mr. Sadeghieh or Ms. Guisalta brought the knife to the bedroom from elsewhere in the home. This does not, however, undermine my finding that it was Ms. Guisalta who initially wielded the knife.
g. In assessing Ms. Guisalta’s evidence, I also consider Dr. Klassen’s evidence. I note that the Crown objects to the admissibility of that evidence on the basis that it is not necessary. While I agree with the Crown that there is a live issue regarding the admissibility of this evidence, even assuming the evidence is admissible, it is entitled to no weight in the circumstances of this case. At best, Dr. Klassen’s evidence can be used for the general proposition that a person suffering post-traumatic stress may possibly not have a complete memory of the traumatic event. Dr. Klassen’s evidence that Ms. Guisalta may be suffering from post-traumatic stress was based on her self-report. It would be circular to then find that his diagnosis of post-traumatic stress makes her evidence more believable as it explains why she might have a gap in her recollection. In any event, Dr. Klassen was clear that post-traumatic stress would not result in a loss of memory of over four hours. Moreover, Ms. Guisalta testified and provided a fairly detailed version of events relating to alleged sexual assault. She also managed to recount a version of those events, including the fact that she killed Mr. Sadeghieh by stabbing him in the neck, to N.S. In the circumstances, Dr. Klassen offers no ultimate assistance in explaining the gaps in Ms. Guisalta’s memory.
[182] Counsel also argued that Ms. Guisalta’s utterances to N.S. should be admissible in accordance with R. v. Edgar, 2010 ONCA 529 and R. v. Liard, 2015 ONCA 414. In the circumstances of this case, Ms. Guisalta’s utterances to N.S. were called as part of the Crown’s case. As such, they are admissible both for and against Ms. Guisalta, see R. v. Baron (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.). That said, to the extent that her utterances to N.S. are consistent with her testimony at trial, I will consider them in accordance with Edgar which suggests that the value of the prior consistent statement is grounded in its spontaneity in response to confrontation with a criminal accusation. As such, I will consider whether the statement may be relevant to the defendant’s credibility and whether it is also a piece of circumstantial evidence bearing on the defendant’s guilt or innocence, see Edgar, at para. 72.
[183] In my view, the utterances to N.S. do not assist the defendant. N.S. does not confront Ms. Guisalta with a criminal accusation. Rather, she simply asks Ms. Guisalta where the vehicle she was driving came from. Ms. Guisalta tells her to get into the vehicle and then proceeds to explain that she killed Mr. Sadeghieh. She also explains that he was trying to touch her sexually and trying to give her a pill, which she produces. She explains that she acted in self-defence. However, she does not mention Mr. Sadeghieh’s use of the knife. She also does not suggest that she “lost her mind” and has no recollection of what happened. Indeed, she appears to tell N.S. that she stabbed Mr. Sadeghieh once in the neck.
[184] Viewed in context, the utterances to N.S. are lacking the element of confrontation that is essential to imbue them with probative value in accordance with principles discussed in Edgar. They are also inconsistent in some material regards with her evidence at trial.
After the Fact Conduct
[185] The Crown argues that Ms. Guisalta’s after the fact conduct is relevant to assessing both her intent and her claim that she acted in self-defence. The conduct that the Crown focusses on includes the following:
a. Ms. Guisalta minimized the number of stab wounds when she spoke with N.S., though she admitted to stabbing Mr. Sadeghieh at least once in the neck;
b. She collected all of his electronic devices from the house before leaving and then reformatted them, thus destroying any available evidence that might be on the devices;
c. She disposed of the knife used in the killing;
d. She disposed of Mr. Sadeghieh’s clothing;
e. She attempted to conceal her clothing and the electronic devices at N.S.’s mother’s apartment.
[186] The starting point for assessing the probative value of the after the fact conduct is the fact that Ms. Guisalta admits that she killed Mr. Sadeghieh by stabbing him. As such, the issue is whether her after the conduct sheds light on what her mindset was at the time she killed Mr. Sadeghieh. Does the after the fact conduct shed light on whether Ms. Guisalta was acting with the intent required for murder? Does it shed light on her claim of self-defence?
[187] The context for assessing this conduct is important. As indicated, I find that Mr. Sadeghieh was killed around 12:50 a.m. Ms. Guisalta left his home at approximately 1:12 a.m. In the interim, she cleaned off the blood that was on her hands and legs in bathroom. She went into the back bedroom and turned on the light. I reject her evidence that this light was “automatic” unlike the other lights in the house. This evidence, which only came up in re-examination, seemed geared towards responding to the Crown’s suggestion that she went into the back bedroom and turned on the light while perhaps looking for a bag.
[188] Ms. Guisalta also gathered various electronics and carried them to Mr. Sadeghieh’s car. On this point, I reject her evidence that all the electronics she took were simply located on the kitchen counter. This seems highly unlikely given the breadth and number of items taken. It is far more likely that she quickly looked through the house and located the various items taken. I also find that she likely used a bag to carry the items to the car.
[189] Ms. Guisalta explains that she took the electronic “gadgets” because she was aware that Mr. Sadeghieh had cameras in his home and she wanted to get rid of any evidence that she had been at his home. I accept that this was part of her motivation. I also find that she collected items of value, including items that would not be related to accessing surveillance, such as a pair of headphones and digital camera and flash. I accept N.S.’s evidence that Ms. Guisalta later indicated a desire to sell certain items. Taken together, I find that Ms. Guisalta acted with more than one motivation when she collected the objects in the house.
[190] There is also no issue that Ms. Guisalta took Mr. Sadeghieh’s vehicle and left the scene rather than calling the police. She explained that she feared that the police would not believe her. She also had no other way to get home.
[191] In terms of the aborted trip to Niagara Falls, I find that it was N.S. who came up with the idea initially. I accept N.S.’s evidence that Ms. Guisalta decided to turn back when she saw a police officer and became afraid.
[192] I find that after the aborted trip to Niagara Falls, Ms. Guisalta decided to get rid of Mr. Sadeghieh’s car. As indicated, I find that she essentially sold it to Mr. Fidelino for some drugs and $700. She clearly did not want to remain in possession of his car and was concerned that it might be located or tracked.
[193] In assessing the probative value of this evidence, I find that it does not assist in determining whether Ms. Guisalta had the mens rea for murder. The evidence clearly shows that Ms. Guisalta was involved in Mr. Sadeghieh’s death, but it offers no insight into whether Ms. Guisalta acted with the requisite intent to commit murder.
[194] In other words, I am not prepared to find that the disposal of evidence and her statement to N.S. about the circumstances of the killing support an inference that the killing was more likely a murder than a manslaughter. In my view, this proposed use of the evidence fails the Arcangioli analysis.
[195] The more nuanced issue is whether the evidence assists in assessing the claim of self-defence. In my view, it is relevant and is appropriately considered. On Ms. Guisalta’s evidence she is the victim of a terrifying sexual assault by Mr. Sadeghieh. She then “loses her mind” and stabs him 28 times in self-defence. After Mr. Sadeghieh is dead, she has the wherewithal to quickly search for and collect all of his electronics and takes them along with his vehicle. Hours later, she sells the vehicle to a friend. She later takes steps to destroy any evidence that may be available on the electronic devices and expresses an intent to either sell or dispose of the devices.
[196] While I accept that assessing after the fact conduct is a delicate exercise as it requires an assessment of the type of conduct one expects in certain circumstances, I am nonetheless satisfied that as a matter of admissibility, the conduct is potentially relevant to assessing Ms. Guisalta’s claim of self-defence. In short, her conduct may be helpful in assessing the credibility of her claims regarding the nature of the alleged sexual assault and her response to it. That said, it is simply one piece of evidence that is to be considered along with all the evidence and I will address the weight, if any, that can be given to this evidence later in these reasons.
Intent for Murder
[197] In deciding whether the Crown has proven the mens rea for murder beyond a reasonable doubt, I must consider whether all the available evidence supports a finding that Ms. Guisalta acted with the requisite intent for murder. This includes evidence that also forms part of the assessment of the self-defence and the partial defence of provocation, see R. v. Flores, 2011 ONCA 155 at paras. 68-76 and R. v. Bouchard, 2013 ONCA 791 at paras. 54-55 and 60. As such, evidence that “falls short” of establishing a defence is nonetheless considered in a “rolled-up” fashion. The purpose of this exercise is to protect against a “compartmentalized approach to the evidence by considering it only in connection with a discrete defence, justification, or excuse,” see R. v. Phillips, 2017 ONCA 752 at para. 155.
[198] In her evidence, Ms. Guisalta offers no specific indication as to what her subjective intent was at the time of the stabbing. However, she explains that when Mr. Sadeghieh threatened to kill her unless she had sex with him, she was in fear and tried to escape. When she ended up at the foot of the bed and saw the knife, she grabbed the knife and used it to stab Mr. Sadeghieh. In doing so, she was trying to defend herself. She explained that she “lost her mind” when doing so. She could not recall how many times she stabbed Mr. Sadeghieh, though shortly after the incident, she told N.S. that she stabbed him in the neck and killed him.
[199] There is no issue that Ms. Guisalta stabbed Mr. Sadeghieh 28 times. Mr. Sadeghieh was stabbed on both sides of his neck. Each of these stab wounds cut the jugular vein. Mr. Sadeghieh was also stabbed in the back hard enough that the blade penetrated his chest cavity and punctured his lung. These were fatal wounds either alone or in combination.
[200] In addition, he suffered an additional 25 stab wounds, the majority of which were on his head, neck and back. Three of the wounds were to the front of his body. A couple of the wounds were defensive wounds supporting an inference that at least for part of the stabbing, Mr. Sadeghieh was trying to defend himself.
[201] I am also satisfied that the knife seen by N.S. was the knife used to kill Mr. Sadeghieh. As N.S. indicated, the tip of the knife was bent, which suggests it was used with significant force.
[202] Given the number of wounds, this was a prolonged attack with changing orientations. As indicated, I find that the stabbing started on the bed and resulted in the large blood stain that is on the center of the bed. It then continued on the floor at the foot of the bed as evidenced by the large pool of blood. It ended when Mr. Sadeghieh collapsed at the side of the bed.
[203] While there is some evidence of alcohol consumption, there is no suggestion that intoxication played any role in Ms. Guisalta’s mindset at the time of the stabbing. There is also no evidence of any mental disorder or related issue that might have impaired her mental functioning at the time.
[204] A trier of fact can infer that a sane and sober person intends the natural and probable consequences of their actions. Where the results are predictable, the court may infer that the person intended those consequences, see R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252 at para. 19.
[205] When the evidence relating to Mr. Sadeghieh’s injuries is viewed as a whole and in context, I find that the nature, location and number of injuries inflicted on Mr. Sadeghieh leave open only one inference on the issue of mens rea. Even when I consider the evidence specifically relevant to self-defence and provocation, I am not left with any doubt about Ms. Guisalta’s mental element. This is not an instance where the evidence suggests that it is reasonably possible that Ms. Guisalta was acting under circumstances, such as anger, excitement or instinctive reactions, that had an impact on the formation of the requisite intent for murder.
[206] Ultimately, I am satisfied that these injuries were inflicted with an intention to kill or to cause significant bodily harm knowing that it was likely to result in death and being reckless as to whether or not death ensued. As such, I am satisfied that the Crown has proven the requisite mens rea for murder beyond a reasonable doubt.
Self-Defence
[207] I turn next to assessing self-defence. Again, I remind myself that the onus of disproving self-defence rests entirely with the Crown beyond a reasonable doubt.
[208] In view of the significant credibility and reliability problems with Ms. Guisalta’s evidence, I am largely unable to make definitive findings regarding what exactly happened inside Mr. Sadeghieh’s bedroom at the critical time.
[209] That said, it appears obvious that something sexual occurred. Indeed, when viewed in context, the most likely reason for Ms. Guisalta to have been inside Mr. Sadeghieh’s bedroom was for a sexual purpose of some sort. It is also clear that the interaction in the bedroom ends in his death and at the time of his death, Mr. Sadeghieh was naked. While I must avoid speculation, an inference arises that the events resulting in Mr. Sadeghieh’s death are related to a sexual interaction of some kind.
[210] Ms. Guisalta testified that Mr. Sadeghieh touched her breast and attempted to kiss her. She did not say anything in response and turned her face to the side. According to Ms. Guisalta, this brief event then prompted Mr. Sadeghieh to pull out a knife from his nightstand and threaten to kill her unless she had sex with him. This caused her to attempt to flee and resulted in both her and Mr. Sadeghieh being on the floor at the foot of the bed, where according to Ms. Guisalta she took the knife and stabbed Mr. Sadeghieh.
[211] As the Crown notes, an escalation of this sort would appear to be an extremely unlikely occurrence when the entire event is viewed in context. I agree and I entirely reject Ms. Guisalta’s evidence in this regard. I specifically reject her evidence about the manner in which she came to hold the knife and, as indicated, I find that Ms. Guisalta first stabbed Mr. Sadeghieh while he was sitting on the bed.
[212] That said I cannot entirely exclude the possibility that some form of unwanted sexual activity occurred and that as a result, the interaction between Mr. Sadeghieh and Ms. Guisalta became violent.
[213] As such, I am prepared to find that the first two components of self-defence have not been disproved. In other words, it is reasonably possible that Ms. Guisalta responded to the catalyst of an unwanted sexual advance of some sort. It is also reasonably possible that Ms. Guisalta’s motive in stabbing Mr. Sadeghieh was for a defensive purpose, at least initially. To be clear, I am not satisfied that this is the case, I am merely concluding that there is a reasonable possibility this is the case. In other words, the Crown has not disproven these two elements of self-defence beyond a reasonable doubt.
[214] That said, I am entirely satisfied that self-defence fails on the third element of the defence which examines the reasonableness of the response.
[215] I start my analysis on this issue by examining the nature and imminence of the threat posed by Mr. Sadeghieh. The assessment of this issue is made difficult because, for the reasons stated, I entirely reject Ms. Guisalta’s evidence as to how the initial sexual assault and threat occurred.
[216] In terms of the imminence of the threat, the evidence at its highest suggests a reasonable possibility that some unwanted sexual conduct occurred while Ms. Guisalta was standing at the side of the bed, facing Mr. Sadeghieh. I entirely reject her evidence that he pointed the knife at her chest while threatening to kill her. As indicated, I find that she had the knife at this time and he was stabbed while seated on the bed. He would have been facing Ms. Guisalta at this time and I note that he had defensive wounds on his left hand and several stab wounds to the front side of his body. While I cannot make specific findings as to the exact timing of these injuries, it is certainly possibly that a number of the injuries were caused at this time. In any event, I am satisfied that at least one significant injury was caused at this time given the amount of blood staining on the bed.
[217] Moreover, I am satisfied that Ms. Guisalta had possession of the knife before the incident moved to the floor at the foot of the bed. In other words, her response to the unwanted sexual conduct was to wield the knife. I also note that Ms. Guisalta and Mr. Sadeghieh were of comparable sizes. This is not an instance where Mr. Sadeghieh presented as significantly larger and stronger.
[218] Importantly, I further find that once Mr. Sadeghieh and Ms. Guisalta were at the foot of the bed, Ms. Guisalta engaged in a further one-sided knife attack on Mr. Sadeghieh. He was repeatedly stabbed. Many of the stab wounds were to his back suggesting he was facing away from her, likely trying to get away or shield himself. The stabbing only ended when Mr. Sadeghieh managed to move to the side of the bed where he collapsed with his hand on the bed. Importantly, Ms. Guisalta had absolutely no injuries on her, apart from a bruise on her leg which she explained occurred when she slipped on the blood. This is not an instance where Mr. Sadeghieh managed to fight back in any sense of the word.
[219] While I accept that a person cannot be expected to weigh their defensive response “to a nicety”, on any objective measure, this was an entirely disproportionate response that was not rationally or reasonably connected to whatever may have occurred between Ms. Guisalta and Mr. Sadeghieh.
[220] While these findings are sufficient to dispose of the defence on the third element, I note that the defensive purpose element would also have been undermined by the time Ms. Guisalta continued repeatedly stabbing Mr. Sadeghieh at the foot of the bed. By this point in the interaction, she was simply acting out of rage and anger.
[221] In terms of the after the fact conduct, while I consider it in assessing the self-defence claim, it does not ultimately assist in my final determination. There is no issue that Ms. Guisalta took a number of steps after the fact that displayed a calm, calculated, emotional state. She collected electronics that had value and potentially contained incriminating evidence. She took Mr. Sadeghieh’s car and then sold it to Mr. Fidelino. She presented as calm and collected to N.S. At first blush, it is hard to square her conduct and presentation after the fact with her claim that she had been sexually assaulted and threatened in such a manner that caused her to stab Mr. Sadeghieh 28 times.
[222] That said, there is no set or fixed way for a person to act in this type of circumstance. While one might expect a victim of sexual assault who acted in self-defence to not take steps to hide their involvement in the incident, experience and common sense suggests otherwise. A person may have many reasons for wanting to hide the extent of their involvement in an incident, even where they may also believe their conduct was justified.
[223] As such, I find that Ms. Guisalta may well have wanted to cover up her involvement in this matter even if she believed that she had acted in self-defence. As she explained, she opted against calling the police as she was concerned that they would not believe her. In the circumstances of this case, that was a valid concern.
[224] Without engaging in speculative reasoning, I am not prepared to find that her specific after the fact conduct ultimately makes it less likely that she acted in self-defence and more likely that she simply committed a culpable homicide. As such, I place no weight on the after the fact conduct.
Provocation
[225] I turn lastly to the issue of provocation. As indicated, while I do not accept Ms. Guisalta’s version of events, I find that there is a reasonable possibility that some form of unwanted sexual activity resulted in the confrontation between Ms. Guisalta and Mr. Sadeghieh. I also note that Ms. Guisalta maintains that she “lost her mind” once she got the knife. She then stabbed Mr. Sadeghieh repeatedly.
[226] On the evidence before me, I accept that the first element of the partial defence of provocation have not been disproven beyond a reasonable doubt. Again, and to be clear, I am not finding that a sexual assault actually occurred. Rather, I accept that when the incident is viewed in context, there exists a reasonable possibility that some form of unwanted sexual activity precipitated the events. That said, and as already indicated, I entirely reject Ms. Guisalta’s evidence about how this unfolded, including her evidence relating to the threat with the knife. As indicated, I find that Ms. Guisalta had the knife and used it on Mr. Sadeghieh while he was seated on the bed and before they ended up on the floor at the foot of the bed.
[227] Turning to the second element of the partial defence, I must determine whether the Crown has disproven that the wrongful act or insult was sufficient to deprive an ordinary person of self-control. I find that the Crown has disproven this element beyond a reasonable doubt. This is not a case like Rasberry where the accused was attacked violently by a stronger assailant who said that unless he submitted to anal sex, he would be beaten up and anally raped and then his wife would also be beaten up and raped anally.
[228] While the evidence suggests that some form of unwanted sexual contact occurred, I do not know what that entailed. However, I do know that when Mr. Sadeghieh was initially stabbed, he was naked and seated on the bed facing Ms. Guisalta. Moreover, even on Ms. Guisalta’s evidence regarding the nature of the sexual assault, Mr. Sadeghieh touched her breast over her clothes and tried to kiss her. She turned her head to the side, and he kissed her cheek. While this conduct would amount in law to a sexual assault, I am satisfied that it would not objectively cause a person to lose control and kill the person committing the sexual assault.
[229] In any event, the incident did not end at that stage, it continued at the foot of the bed where Mr. Sadeghieh was stabbed many more times. When I consider the evidence as whole, I find that she acted out of subjective rage and anger. However, I am satisfied beyond a reasonable doubt that no objective reasonable person would have similarly lost control as a result of Mr. Sadeghieh’s actions.
CONCLUSION
[230] Ms. Guisalta, please stand.
[231] On count one in the indictment, I find you guilty of the second-degree murder of Mohammad Amin Sadeghieh.
[232] In accordance with section 523(1)(a) of the Criminal Code, your bail order is now at an end, and I order you taken into custody pending your sentencing proceeding.
Justice J. Di Luca
Released: May 2, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
CHARMAINE ANNE GUISALTA
Defendant
REASONS FOR JUDGMENT
Justice J. Di Luca
Released: May 2, 2023