ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10/1000092/0000
DATE: 20120417

BETWEEN:

HER MAJESTY THE QUEEN – and – KLEITON LUCIANO Da SILVA

L. Shin & R. Law , for the Crown
A. De Marco & S. Bagnall , for the Accused

HEARD: April 13, 2012

REASONS ON MOTION FOR A DIRECTED VERDICT

GARTON J. :

[ 1 ] The accused, Kleiton Da Silva, is charged with the first degree murder of Samuel Junior. He is also facing a charge of aggravated assault on Luis Lopes. There is no issue that the accused stabbed Mr. Junior once in the neck, causing his death. There is no issue that the accused also stabbed Mr. Lopes. However, Mr. Lopes survived his injury and testified at this trial.

[ 2 ] Following the closing of the Crown’s case, the defence brought a motion for a directed verdict of acquittal on the charge of first degree murder. The position of the defence is that there is no evidence of planning and deliberation. The defence concedes that there is some evidence to support a finding of second degree murder.

[ 3 ] The evidence and the agreed statement of fact indicate that on May 4, 2009, the accused, along with Mr. Junior and Humberto Correira, were living in a rooming house in the basement of 1669 Dundas Street West in Toronto. Mr. Junior was planning to move out the following day, that is, on May 5, 2009, as he was returning to Brazil for his sister’s wedding. Mr. Lopes intended to move into Mr. Junior’s room and had taken his belongings over to the residence on May 4th.

[ 4 ] Mr. Lopes testified that he had known the accused for about two months at the time and described him as a quiet person. In fact, the accused was so quiet the first time that they met that Mr. Lopes told him, “I don’t like you because you don’t talk.” He thought the accused was a “little crazy” since he never smiled, was very quiet, and his eyes were strange in that he hardly ever blinked.

[ 5 ] On May 4th, Mr. Lopes brought over supplies, including beer and wine, for a barbeque, which was held just outside the entrance of the rooming house. Mr. Lopes, Mr. Junior and the accused all participated in the barbeque, which went on from about 4:00 p.m. to 10:00 p.m. On one occasion that afternoon, Mr. Lopes gave Mr. Junior $30.00 to purchase some crack cocaine. On another occasion, he gave $30.00 to the accused to purchase crack cocaine. The crack was consumed almost immediately after it was purchased, which may have been as early as 5:30 p.m.

[ 6 ] When asked about the effects of alcohol and crack on Mr. Junior and the accused, Mr. Lopes testified that Mr. Junior became very talkative. However, the accused became quieter than usual. He was mostly by himself and not talking to anyone. No one seemed to be in a bad mood. Everything appeared to be normal. There were no arguments or disputes that Mr. Junior was aware of.

[ 7 ] After the barbeque, Mr. Lopes, Mr. Junior and the accused went inside to the common room. They were there for about half an hour when the accused got up and went to his bedroom. He returned a short time later. Mr. Lopes did not see the accused carrying anything in his hands as he returned to the common room. Mr. Lopes then went to the washroom to brush his teeth and get ready for bed.

[ 8 ] Mr. Lopes testified that he had been in the washroom for about 5 minutes when he heard Mr. Junior scream out “Aye! Aye!” Mr. Lopes described the screams as filled with despair. Mr. Lopes had not heard any noises or raised voices prior to these screams. When he opened the washroom door about a foot to see what was going on, the accused was at the door and immediately stabbed him in the left side of his neck. As he did so, he told Mr. Lopes, “This one is for you.” Mr. Lopes described the accused as looking “crazy” and “very hateful.” Mr. Lopes immediately closed the door and remained in the washroom for about 15 minutes. When he emerged, he did not see anyone. He eventually made his way to the residence of his ex-wife, who drove him to the hospital.

[ 9 ] Mr. Lopes testified that he had not had any disagreements with the accused before the stabbing. There had been no tension between them and “everything was normal.”

[ 10 ] Mr. Lopes had not noticed any knives in the common area that night. He testified that there were no knives in the area of the barbeque. People had not used knives to eat the meat that was served, which was mainly chicken wings.

[ 11 ] Mr. Lopes testified that about two days prior to the barbeque, he had spent the night at the rooming house and had slept on the floor in the accused’s room. It was at that time that he noticed a red-handled knife in the accused’s bedroom. That same evening, he also observed a physical fight between the accused and Mr. Junior, whom he described as fighting “like two bulls.” They grabbed each other and the accused pushed Mr. Junior against the wall. The accused hit Mr. Junior in the chest “a lot” and won the fight because he was much stronger. After the fight, Mr. Lopes observed multiple scratches along Mr. Junior’s forearms. Other than this altercation, Mr. Lopes never observed any problems between Mr. Junior and the accused. He never saw Mr. Junior behave aggressively towards the accused. However, he described the relationship between Mr. Junior and the accused as “superficial” and “not close.”

[ 12 ] The knife that the accused used to stab both Mr. Junior and Mr. Lopes was a red-handled knife. The handle is about 11 cm long and the blade is about 9 cm long. The fatal neck wound inflicted on Mr. Junior was 9 to 9.5 cm deep or the same length as the knife’s blade. The wound extended down through tissue and muscle, penetrated the wall of the right subclavian artery, punctured the right lobe of the lung and extended 2 cm into the lung. The wound caused massive blood loss.

[ 13 ] At around 2:30 am on May 5th, P.C. Moniz was investigating an unrelated incident in the area of St. Clarens Avenue and Bloor Street West when the accused approached him and told him, “I’m the one you’re looking for. I was the one with the knife. I stabbed him.” P.C. Moniz first asked the accused his name and then asked him what he was talking about. The accused told him that he had stabbed a man on Dundas in the neck and that he had left. As the accused was speaking, he gestured towards his neck in a downward stabbing motion. The officer described the accused as very calm and unemotional. He was not crying, spoke quietly and did not appear to be under the influence of drugs or alcohol.

[ 14 ] P.C. Moniz arrested the accused for aggravated assault and advised him of his rights to counsel. The accused told him that he would show him where he had thrown the knife.

[ 15 ] En route to the police station, the accused told the officer that he had gotten into a fight with Samuel – the man whom he had stabbed – and that Samuel had said he was going to kill him. After P.C. Moniz stopped the accused and cautioned him, the accused continued talking. He stated that he was scared, that he grabbed the knife, stabbed Samuel and ran away.

[ 16 ] When P.C. Moniz learned that the victim had died, he advised the accused that he was now being charged with murder. The accused’s demeanour did not change upon receiving this news and he proceeded to direct the officer to where he had thrown the knife. P.C. Moniz and another officer located the knife between two houses on St. Clarens Avenue. DNA testing indicates that the blood of both Mr. Junior and Mr. Lopes was on the blade of the knife.

[ 17 ] During his DVD-recorded interview by Det. Sgt. Nielson and Det. Gallant on May 5, 2009, the accused stated that Mr. Lopes had given him the knife “a long time ago” when he was staying with him so that they could cut bread and meat. He described the knife as a steak knife with an orange or red handle.

[ 18 ] The accused told the officers that there were no problems during the barbeque on May 4th and that no one, including Mr. Junior and Mr. Lopes, was angry.

[ 19 ] The accused described the fight that he had with Mr. Junior a few days earlier and what had triggered it. It was the accused’s recollection that the fight took place five days before the stabbing. An individual by the name of David had given Mr. Junior some money to buy crack cocaine. Mr. Junior went out, purchased the drug and came back to the rooming house. By that time, David had returned to his own home. Mr. Junior showed the crack to the accused but would not let him follow him to David’s place to share the drug. He pushed the accused away. The accused told the officers that this “enraged” him. Mr. Junior went off to David’s and the accused went to bed. Later that night, when Mr. Junior returned home, the accused asked him if David had sent a “piece” (of crack) for him. Mr. Junior proceeded to punch him and the fight began. It lasted about 3 minutes and ended when they let go of each other. Mr. Junior punched him in the face but the blow did not leave a mark. After the fight, Mr. Junior told him, “Don’t give me any foolishness or I’ll kill you.”

[ 20 ] The accused told the officers that this threat frightened him. When asked why, the accused stated, “If anyone threatens me, I’m afraid of them.” He also stated that in Brazil, where he was born, when someone threatens to kill you, they do it.

[ 21 ] The day after the fight, the accused asked Mr. Junior for his forgiveness. They shook hands and Mr. Junior accepted his apology. However, the accused told the officers that he was still afraid of Mr. Junior.

[ 22 ] The accused told the officers that between the fight and the day of the stabbing, he did not have any more problems with Mr. Junior. They saw each other fairly frequently because they were living in the same rooming house. However, they did not talk to each other.

[ 23 ] When asked by Det. Gallant whether Mr. Junior did anything to deserve to be stabbed, the accused stated that if he stopped to think about it, he “guessed not.” However, he was mad at the time and not thinking. He added that no one deserves to die. When Det. Gallant probed further into how it came about that he had killed someone, the accused stated, “Maybe to you, it’s a simple thing this being threatened or so, but it’s not for me. To me, what I did to him wasn’t worth it but when someone feels threatened, maybe he tries to react, I don’t know, do something.” When the officer asked whether he was talking about the threat that had occurred five days earlier, the accused replied, “Yes, that’s the one.” The officer then asked, “But nothing happened in between five days ago and tonight?” The accused replied, “No, but to get to that point there were other things but I don’t want to talk about it now.” He also stated, “No matter what the case is, no one deserves dying, but the threat he made, I was frightened.”

[ 24 ] Later on in his statement, the accused acknowledged that he knew that stabbing a person could cause that person’s death. However, he also stated that at the time, he “wasn’t thinking. I didn’t want what ended up happening.”

The test

[ 25 ] The question to be asked by a trial judge considering a motion for a directed verdict is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: United States of America v. Sheppard (1971), 1976 8 (SCC) , 30 C.C.C. (2d) 424 (S.C.C.), which was reaffirmed in R. v. Arcuri (2001), 2001 SCC 54 () , 157 C.C.C. (3d) 21 (S.C.C.). Under this test, the motion must be dismissed “in any case in which there is admissible evidence which could, if it were believed, result in a conviction.”

[ 26 ] The test is the same whether the evidence is direct or circumstantial. However, the nature of the judge’s task varies according to the type of evidence that the Crown has advanced. When the Crown relies on direct evidence, the judge’s task is straightforward. As McLachlin C.J.C. explained in Arcuri , at para. 22 ,

[b]y definition, the only conclusion that needs to be reached in such a case is whether the evidence is true... It is for the jury to say whether and how far the evidence is to be believed... Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

[ 27 ] The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. At para. 23 of Arcuri , McLachlin C.J.C. stated,

[t]he question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed.... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed , could reasonably support an inference of guilt. [emphasis in original.]

[ 28 ] In R. v. Munoz , 2006 Can LII 3269 (ON SC) at paras. 21 and 22 , Ducharme J. described the limited weighing carried out by a preliminary hearing judge or, as in the present case, the trial judge hearing a motion for a directed verdict:

This limited weighing means that inferences to be drawn from circumstantial evidence need not be ‘compelling’ or even ‘easily drawn’ in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary hearing judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, the matter should be left for their determination. As Major J. put it in Regina v. Sazant , 2004 SCC 77 () , [2004] S.C.J. No 74 at para. 18 , ‘where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.’ Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.

However, despite the very circumscribed scope of the preliminary inquiry judge’s function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.

Meaning of “planned and deliberate”

[ 29 ] The meaning of “planned and deliberate’ was discussed in Nygaard and Schimmens v. The Queen (1989), 1989 6 (SCC) , 51 C.C.C. (3d) 417 (S.C.C.) at p. 432. The Court noted that it has been held that “planned” means that the scheme was conceived and carefully thought out before it was carried out and “deliberate” means considered, not impulsive. The Court then referred to the classic instruction to a jury as to the meaning of planned and deliberate that was given by Gale J., as he then was, in R. v. Widdifield , Ontario Supreme Court, September 29, 1961, unreported, as excerpted in 6 C.L.Q. 152, at p. 153:

I think that in the Code ‘planned’ is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word ‘deliberate’ is concerned, I think that the Code means that it should also carry its natural meaning of ‘considered,’ ‘not impulsive,’ ‘slow in deciding,’ ‘cautious,’ implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

Application of the law to this case

[ 30 ] During his submissions, counsel for the accused referred to the evidence that supports the inference that the stabbing of Mr. Junior was an impulsive as opposed to a planned and deliberate act. For example, the stabbing took place when the accused would have known there were potential witnesses to the crime: Mr. Correira and Mr. Lopes were present in the rooming house at the time. It is apparent from the accused’s police interview that he was not wearing shoes or a jacket when he stabbed Mr. Junior. He spoke of putting on these articles of clothing before he left the residence.

[ 31 ] Counsel for the accused submits that the fact that the accused surrendered to police a relatively short time after the stabbing is inconsistent with a planned and deliberate murder. Counsel also reviewed those portions of the accused’s statement where he told the police that he did not want or intend to kill Mr. Junior.

[ 32 ] In addition, defence counsel noted that there is no direct evidence as to where or when the accused retrieved the knife that was used in the stabbing. The accused acknowledged that the knife belonged to him and that he had had it for a long time. Mr. Lopes testified that he had seen the knife in the accused’s room as recently as two days prior to the stabbing. However, Mr. Lopes did not see the accused holding the knife when the accused returned to the common room from his bedroom just shortly before the stabbing. Counsel for the accused submits that in the circumstances, it would be mere speculation to conclude that the accused went to his room to retrieve and did in fact retrieve the knife at that time.

[ 33 ] Counsel for the accused also submits that no inference can be drawn from the accused’s quiet demeanour during the barbeque that he was planning and deliberating the murder of Mr. Junior. Mr. Lopes testified that the accused was always quiet and hardly ever spoke.

[ 34 ] In determining whether there is any evidence upon which a reasonable jury, properly instructed, could find planning and deliberation in this case, I must consider the totality of the evidence. I bear in mind that a plan does not have to be complicated or sensible. It can be very simple and easy to set up. It can take place in a short period of time and immediately prior to the carrying out of the act. As stated earlier, “deliberate” means considered and not impulsive. Having taking all of the evidence into account, I find that the test for granting a directed verdict as set out in Sheppard and Arcuri has not been met.

[ 35 ] As noted by Crown counsel in her submissions, there is some evidence of motive; that is, that the accused stabbed Mr. Junior out of anger and/or fear that had been brewing from the time of their fight a few days earlier. The accused acknowledged animus towards Mr. Junior: he told the police that he was “enraged” that Mr. Junior pushed him away and prevented him from accompanying him to David’s home to share the crack cocaine. Mr. Lopes testified that later that same night, the accused and Mr. Junior grabbed each other. The accused pushed Mr. Junior against a wall and hit him “a lot” in the chest. Mr. Junior also sustained visible injuries to his forearms. The accused, who was much stronger than Mr. Junior, was the obvious winner of the fight.

[ 36 ] The accused told the police that after the fight, Mr. Junior threatened to kill him. Later on, the accused apologized to Mr. Junior and they shook hands. However, there is evidence that the matter was not resolved in the accused’s mind. He told the police that he had a problem with Mr. Junior. He stated that he was “mad” at him when he stabbed him and that he was also afraid of him. When speaking about feeling threatened, the accused made it clear to the officers that he was referring to the threat made by Mr. Junior after the fight and some days prior to the stabbing, although he also alluded to “other things”, about which he did not elaborate. The threat had frightened him and stayed with him. He told the officers, “I was afraid. I wasn’t sleeping.”

[ 37 ] In my view, there is some evidence from which an inference could be drawn that the accused retrieved the red-handled knife from his bedroom shortly before he stabbed Mr. Junior. Mr. Lopes did not see the accused carrying anything in his hands when he returned to the common room. However, the knife was not a particularly large object and could have been secreted on the accused’s person. The accused acknowledged in his statement to the police that he owned the knife. Mr. Lopes’ testimony places the knife in the accused’s room two days prior to the stabbing. In addition, Mr. Lopes testified that he did not see the knife in the common room during the time that he, Mr. Junior and the accused were there following the barbecue. Mr. Lopes testified that after about 30 minutes, the accused got up, went to his room and returned a short time later. Mr. Lopes went to the washroom. Mr. Junior was stabbed about five minutes after that. While he was in the washroom, Mr. Lopes heard no sounds that would indicate any altercation or argument between Mr. Junior and the accused. There were no raised voices and no sounds of a struggle or fight prior to Mr. Junior screaming out, “Aye! Aye!”

[ 38 ] The accused told the police that he did not intend to kill Mr. Junior but acknowledged that a person could die after being stabbed. Crown counsel noted that Mr. Junior suffered only one wound, which was caused by the entire length of the knife’s blade being plunged into one of the most vulnerable parts of the body, that is, his neck. The nature of the injury is such that it could support the potential inference that it was caused by a deliberate act as opposed to a wound inflicted during the course of a struggle. The wound is consistent with the accused’s description to P.C. Moniz as to how he stabbed Mr. Junior. As he was speaking to the officer, he gestured towards his neck in a downward stabbing motion.

[ 39 ] The fact that the accused was quiet and did not talk to anyone on the evening in question is of limited evidentiary value in terms of the issue of planning and deliberation since, according to Mr. Lopes, the accused was always non-communicative. Mr. Lopes was of the view that the accused was even quieter than usual on this occasion but attributed this to his ingestion of crack cocaine. Crown counsel noted that the accused’s silence is not inconsistent with planning and deliberation.

[ 40 ] In summary, when the evidence of motive is considered in conjunction with (i) the evidence regarding the knife, which, as I have found, could give rise to the potential inference that the accused retrieved the weapon from his bedroom shortly before the stabbing; (ii) the absence of any dispute or altercation having occurred that evening between the accused and Mr. Junior; (iii) the evidence of Mr. Lopes that he heard no sounds of an argument or struggle while he was in the bathroom prior to hearing Mr. Junior’s screams; and (iv) the nature of the injury suffered by Mr. Junior, along with the accused’s description to P.C. Moniz as to how he inflicted the wound, there is a potential inference that could be drawn that the accused planned and deliberated his attack on Mr. Junior.

[ 41 ] I make no comment on the strength of this inference. The test is whether such an inference is available based on the evidence and I have concluded that it is. As a result, the motion for a directed verdict of acquittal on the charge of first degree murder is dismissed.

GARTON J.

Released: 20120417

COURT FILE NO.: 10/1000092/0000
DATE: 20120417
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – KLEITON LUCIANO Da SILVA

REASONS ON MOTION FOR A DIRECTED VERDICT GARTON J.

Released: 20120417