CITATION: R. v. Tayongtong, 2017 ONSC 5999 COURT FILE NO.: Crim J(P) 496/14 DATE: 20171011
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN Crown
v.
NELSON TAYONGTONG Defendant
BEFORE: Ricchetti, J.
COUNSEL: N.J. Bridge and G. Hendry for the Crown M. Moon and K. Perchenok for the Defendant
HEARD: October 5, 2017
DIRECTED VERDICT RULING
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial or these reasons shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
The Issue
[1] The Defence brings this application seeking a directed verdict that the Crown’s evidence fails to establish a case sufficient to go to the jury on first degree murder.
[2] On October 6, 2017, this court advised counsel that the Defence application was dismissed. Reasons would follow. These are those reasons.
Background
[3] Mr. Tayongtong is charged with the first degree murder of Aicha Saludares on September 8, 2012.
[4] The Crown has closed its case.
[5] In this case, the Crown relies on planning and deliberation to establish first degree murder.
The Crown’s evidence
[6] Mr. Tayongtong and Aicha Saludares were married in 2003 in the Philippines. Mr. Tayongtong immigrated to Canada about a year later.
[7] By 2009, Aicha Saludares was considering a separation or divorce. However, in 2010, Mr. Tayongtong had a stroke. The issue of separation was deferred for a period of time.
[8] In November, 2011, Aicha Saludares and Mr. Tayongtong moved into Aicha Saludares’ mother’s (Elma Saludares) apartment.
[9] By the end of 2011, Aicha Saludares once again wished to separate from Mr. Tayongtong. One of their disputed issues was the division of properties – one home in Davao Philippines (where Mr. Tayongtong’s family lived) and a condo to be built in Manilla.
[10] In early 2012, Mr. Tayongtong and Aicha Saludares travelled to the Philippines but each went their separate ways once they arrived.
[11] Aicha Saludares returned to Canada without Mr. Tayongtong. Aicha Saludares wanted the marriage to end and was content to leave Mr. Tayongtong in the Philippines. Mr. Tayongtong did not want the marriage to end as he still loved Aicha Saludares. Further, Mr. Tayongtong did not want the Davao property sold because his family would have to move out.
[12] Mr. Tayongtong, with the help of his family, returned to Canada in late June 2012.
[13] Neither Aicha Saludares nor her mother wanted Mr. Tayongtong to move back into Elma Saludares’ apartment. But he did so.
[14] From time to time, Mr. Tayongtong saw his family doctor, Dr. Chan. Mr. Tayongtong said he was depressed because his wife had left him in the Philippines, he had needed help from his family to return to Canada, he had financial issues and he didn’t want to live with his wife or his mother in law.
[15] While living in Elma Saludares’ apartment from the end of June until early August 2012, Mr. Tayongtong would meet with Ms. Postejo from time to time during the day. Mr. Tayongtong considered Ms. Postejo his aunt referring to her as “Auntie Didi”. They would go on walks together, have breakfast together and go out on occasions. On one occasion, Mr. Tayongtong told Ms. Postejo that Aicha Saludares was communicating with her boyfriend in the Philippines. Ms. Postejo responded by telling Mr. Tayongtong that God had given him a chance to live again and had a plan for him to do good things for God. Mr. Tayongtong responded by telling Ms. Postejo “Auntie DiDi, someone close to me will die”. The Defence did not challenge this evidence during Ms. Postejo’s cross-examination.
[16] Mr. Tayongtong also told Ms. Postejo that he “should move out of the apartment”. On August 7, 2012, Mr. Tayongtong moved out of Elma Saludares’ apartment with the help of an old friend, Ms. Bostic. He told Ms. Bostic that his wife and mother in law didn’t want him living in the apartment. Ms. Bostic helped Mr. Tayongtong move into a home on Tobermory, near Finch Ave.
[17] Mr. Tayongtong remained at the Tobermory home until September 6, 2012. Mr. Tayongtong was not happy at the Tobermory home. He wanted to leave that home.
[18] Mr. Tayongtong was to go back to the Philippines. There is conflicting evidence whether he wanted to return to the Philippines. In any event, arrangements were being put in place to obtain an airline ticket for Mr. Tayongtong to go to the Philippines within a few days. Aicha Saludares could not afford to put Mr. Tayongtong into a hotel while waiting for Mr. Tayongtong to leave Canada. Aicha Saludares persuaded her mother to let Mr. Tayongtong stay in Elma Saludares’ apartment until he left.
[19] Ms. Bostic and Aicha Saludares sought financial assistance for a plane ticket back home for Mr. Tayongtong. Mr. Tayongtong’s sister requested a copy of Mr. Tayongtong’s passport so she could get a ticket. The plan was in place for Mr. Tayongtong to return to the Philippines in the near future, perhaps as early as the 10th of September.
[20] Elma Saludares picked up Mr. Tayongtong from the Tobermory home on September 6, 2012 and brought him back to her apartment.
[21] Mr. Tayongtong remained in Elma Saludares’ apartment on September 7, 2012.
[22] On September 8, 2012, at around 6:00 a.m., Elma Saludares and Edwin Nene, her boyfriend, left the apartment to go to work. The sliding door was closed. Aicha Saludares and Mr. Tayongtong were still in the apartment.
[23] Edwin Nene returned to the apartment around 1:30 p.m. Aicha Saludares’ body was found on the kitchen floor in a large pool of blood. She was facing downward. Aicha Saludares had defensive wounds. There were wounds to Aicha Saludares’ front and back. There were 138 stab and incise wounds to Aicha Saludares’ body.
[24] There was a lot of blood in the kitchen. There was a pool of blood under Aicha Saludares. Virtually all of the blood spatter was below the countertops. The blood spatter was consistent with it coming from Aicha Saludares’ body while lying on the floor. Clearly, she was stabbed repeatedly while on the floor.
[25] There was a blue handled knife in Aicha Saludares’ right hand but, the evidence suggests, it was placed there after her death. Aicha is left handed. The blue handled knife had Aicha Saludares’ blood on the handle but not elsewhere. The condition of the blue handled knife is also inconsistent with it being present during the blood spatter.
[26] There was also a tip of a knife left in one of Aicha Saludares’ rib bones. The rest of the knife was not recovered by the police.
[27] One of the knives in the kitchen drawers was found to have Aicha Saludares’ blood.
[28] The sliding door was found open by the first responders. There are no blood stains towards or at the sliding door.
[29] There are bloody footprints from the kitchen to the bathroom and out the front door. There were also drops of blood along the path of the bloody footprints. The DNA analysis established these blood drops are from Mr. Tayongtong. Blood was found on Mr. Tayongtong’s prescription medication package where a large number of pills had been removed. This blood belonged to Mr. Tayongtong. Blood was found in the bathroom sink and bathtub. This blood belonged to Mr. Tayongtong. This evidence suggests that Mr. Tayongtong, after the violent assault, went to the washroom, went into the shower, washed in the sink, went to his bedroom and took a large quantity of pills for future use. He then left the apartment.
[30] When Mr. Tayongtong was found by the police on September 19, 2012, he was found to have small healed cuts on his hands and some healed scratches.
[31] There is considerable evidence that a jury could find Mr. Tayongtong continued to love Aicha Saludares despite the fact that Aicha Saludares had separated from him, wanted to divide their family assets and had found another man. There is also evidence that a jury could find Mr. Tayongtong did not want to return to the Philippines but this was being arranged for him by a number of persons including Aicha Saludares. In combination, this evidence, at least for the purpose of this analysis, establishes that the jury could find Mr. Tayongtong had a motive to murder Aicha Saludares.
[32] There is no dispute that the evidence establishes Mr. Tayongtong had the opportunity to murder Aicha Saludares on September 8, 2012.
The Law
[33] The law to be applied in a directed verdict application was set out in R. v. Charemski, [1998] 1 SCR 679:
2 The leading case on the issue of directed verdicts is United States of America v. Shephard, [1977] 2 S.C.R. 1067, which sets out the test to determine whether a case should go to a jury in these terms, at p. 1080: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. See also R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160. In other words, a motion for a directed verdict should not be granted “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. See Shephard, at p. 1080.
3 For there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” in accordance with the Shephard test (at p. 1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden. See Sopinka et al., The Law of Evidence in Canada (1992), at p. 136. Thus, in a murder prosecution, the Crown must adduce evidence on the issues of identity, causation, the death of the victim and the requisite mental state. If the Crown fails to adduce any evidence to discharge the evidential burden on any of these issues, the trial judge should direct a verdict of acquittal.
4 There was, at one time, some confusion about the applicability of this test where the Crown’s case with respect to any or all of the elements of the crime rested entirely on circumstantial evidence. In R. v. Comba, [1938] S.C.R. 396, at p. 397, it was suggested that where the Crown’s case rests on circumstantial evidence, the trial judge can himself apply the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, (i.e., that to convict on circumstantial evidence, the evidence must not permit any other rational conclusion but that the accused is guilty) and direct a verdict. Any confusion on this point was cleared up by this Court’s unanimous judgment (McIntyre J. writing for Dickson C.J. and Estey, Lamer (as he then was), Wilson, Le Dain, and La Forest JJ.) in Monteleone, supra, at p. 161:
Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury. [Emphasis added.]
Where the evidence is purely circumstantial, this Court made it quite clear, at p. 161, that the issue of whether the standard set in Hodge’s Case has been met is a matter for the jury, and not the judge: “The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge’s Case . . . is for the jury to determine. This was settled in Mezzo [Mezzo v. The Queen, [1986] 1 S.C.R. 802]” (emphasis added). In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury. To my mind, this view is dispositive of this case and the Court need go no further than to rely on this authority
[34] Direct evidence of planning and deliberation is not required. It may be inferred from all the circumstances. See R. v. Dadshani, 2007 ONCA 493, [2007] O.J. No. 2595 (C.A.) at paras 3 and 5.
[35] The Supreme Court in R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828 went on to describe the limited weighing of circumstantial evidence to determine whether a reasonable jury properly instructed could return a guilty of verdict:
23 The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The 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: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). 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.
[36] “Planned and deliberate" was described in R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.), 153-4;
What is meant by the expression "planned and deliberate"? Again, gentlemen, let me repeat that it is a question of fact for you to decide whether there was that here and, secondly, that expression should be given its ordinary, natural meaning. It certainly does not include a killing which is perpetrated in hot blood without any premeditation, all of a sudden without consideration, upon impulse, or on the spur of the moment. Killing as a result of any of those things would not be a planned and deliberate killing.
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 intend action. That is what, as it seems to me, "deliberate means".
[37] The planning and deliberation must precede the commencement of the conduct that causes death. See R. v. Reynolds (1978), 44 C.C.C. (2d) 129 (Ont. C.A.). While the planning and deliberation must precede commencement of the action that caused death, post offence conduct may provide some proof of planning and deliberations. In R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), explained the use of post offence conduct to support an inference about a state of mind:
Evidence of after-the-fact conduct is a type of circumstantial evidence. Its potential probative value will depend upon the nature of the evidence, the issues in the case and the positions of the parties. Often, evidence of after-the-fact conduct will be probative of the accused's participation in the crime alleged, but will have no probative value in determining the level of the accused's culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind.: R v White and Cote (1998), 125 C.C.C. (3d) 385 (S.C.C.) at 400-403.
[38] In R. v. Poitras (2002), 57 O.R. (3d) 538, (Ont. C.A.), the Court of Appeal considered the relevance of evidence of post offence conduct to prove that a murder was planned and deliberate:
The relevance of after-the-fact conduct to the issue of whether a murder was planned and deliberate depends on the circumstances of the particular case: R v MacKinnon (1999), 132 C.C.C. (3d) 545 (C.A.). If as a matter of common sense and human experience, the after-the-fact conduct considered in combination with the rest of the evidence is reasonably capable of supporting the inference that the murder was planned and deliberate, then the evidence is relevant to that issue. For example, evidence that the appellant dismembered the body and hid parts of the body in various locations could support the inference that the appellant did not want the body discovered and wanted people to think that Mr. Blake had left for Timmins. This would allow the appellant and Ms. Nelson to immediately assume cohabitation without attracting suspicion. If the jury drew that inference, it would go a long way toward finding that the murder was planned and deliberate.
Position of the Parties
[39] The sole essential element at issue on this directed verdict application is whether it open for the jury to find that the murder was planned and deliberate.
The Defence
[40] The Defence submits that there is no evidence of planning and deliberation on which a properly instructed jury could reasonably find Mr. Tayongtong guilty of first degree murder.
[41] The Defence points to statements made by the Crown in her opening and submits that many of the facts have not been established during the Crown’s case. While that may be so, I am not persuaded that it is relevant to the Defence application. The Defence application must be decided based on the evidence presented at trial and the applicable test for a directed verdict.
The Crown
[42] The Crown relies solely on planned and deliberate for a first degree murder conviction in this case.
[43] The Crown relies on the following facts as circumstantial evidence from which a jury could reasonably infer planning and deliberation:
a) The Crown submits the patio door was opened by Mr. Tayongtong before the murder (as there was no bloody footprints or blood on the door) and the deliberate placement of the blue handled knife in Aicha Saludares’ right hand after the murder which facts permit the jury to draw the inference that Mr. Tayongtong planned the murder and wanted it to appear as though some intruder had committed the murder;
b) The Crown submits there was a 1 hour 42 minute window (from the time that Elma Saludares and Edwin Nene left and the time of the murder) and Mr. Tayongtong knew it was imminent that he was to be returned to the Philippines are facts which permit the jury to draw an inference that it was Mr. Tayongtong’s last opportunity to murder Aicha Saludares and he planned to take advantage of the opportunity;
c) The Crown submits the jury could infer that Mr. Tayongtong followed and caught Aicha Saludares by surprise in the kitchen, took her down to the ground and continued to stab her because the evidence shows Aicha Saludares’ blood is primarily in the lower part of the kitchen (suggesting that the knife attack was entirely on the ground) and the lack of any evidence of a struggle in the kitchen;
d) Mr. Tayongtong was jealous, depressed and stressed at the time. Therefore, Mr. Tayongtong had a motive to murder Aicha Saludares which, the Crown submits, is some evidence of planning and deliberation; and
e) Mr. Tayongtong’s statement to Ms. Postejo several weeks before Aicha Saludares’ death that “someone close to me will die”.
Analysis
[44] Let me deal with each of the Crown submissions.
a) Patio Door/Placement of the Knife
[45] There is no evidence as to who opened the sliding door and when it was opened (before or after the murder). To conclude it was Mr. Tayongtong who opened the door before the murder is speculation.
[46] As for the placement of the blue handled knife in Aicha Saludares’ hand, this evidence, by itself, does not assist in establishing either planning or deliberation. However, I will deal with the potential relevance of this as one piece of circumstantial evidence below.
b) Window of time and knowledge he was about to return to the Philippines
[47] The window of time to carry out the murder that morning may have been a short period of time. However, this submission presupposes that Mr. Tayongtong had a plan and was looking for window of opportunity to carry out that plan, and did so, when the opportunity presented itself. Having an opportunity to commit the offence, even a short opportunity, is not evidence of a plan to commit the offence. That would be speculation.
[48] The fact Mr. Tayongtong knew he would be travelling to the Philippines within the next few days, is not, by itself, evidence that he had a plan to murder Aicha Saludares. Again, I will deal with the potential relevancy of this as one piece of circumstantial evidence below.
c) Caught Aicha Saludares by surprise to kill her
[49] The Crown’s theory that Mr. Tayongtong planned to and did come up behind Aicha Saludares in the kitchen, surprised her, got her to the ground and attacked her with the knife is speculation.
[50] The evidence is that Aicha Saludares defended herself, had wounds on the front and back of her body and was repeatedly knifed while lying on the ground in the kitchen. To attribute a sequence of events as to who was in the kitchen first, how the persons were standing, the speed of the attack, and whether it took the deceased by surprise is all speculation.
[51] The lack of disturbance in the kitchen cupboard may be the result of a quick impulsive attack but is not evidence that the attack was planned or deliberate.
d) Mr. Tayongtong’s Motive
[52] As stated above, there is no doubt there is evidence that Mr. Tayongtong was jealous, unhappy with the separation/divorce, and didn’t want the Davao property divided in the separation. It is open for the jury to decide that Mr. Tayongtong didn’t want to return to the Philippines. It is certainly open to the jury to find that Mr. Tayongtong had a motive to murder Aicha Saludares and the opportunity to do so.
[53] However, motive by itself, does not establish planning and deliberation. Opportunity by itself does not establish planning and deliberation. Some people act on a motive. Other persons act without a motive. Some actions are impulsive. Some actions are planned and deliberated.
[54] This is not an inference that can be drawn from this evidence. It is speculation.
Mr. Tayongtong’s Statement to Ms. Postejo.
[55] It is open for a jury to infer that Mr. Tayongtong was referring to Aicha Saludares when he referred to “someone close to me”. This inference is logically available from the context of the conversation which was preceded by Mr. Tayongtong referring to Aicha Saludares’ calls to her boyfriend in the Philippines.
[56] I reject Defence counsel’s submission that the “me” refers to someone close to Ms. Postejo. Ms. Postejo was quoting Mr. Tayongtong. The “me” refers to Mr. Tayongtong.
[57] It is open for the jury to conclude, based on Mr. Tayongtong’s statement to Ms. Postejo, that as of July or early August 2012:
a) Mr. Tayongtong had deliberated killing Aicha Saludares;
b) Mr. Tayongtong planned to kill Aicha Saludares. The word used is “will die”, not might or some other word suggestive of uncertainty.
[58] In addition, having made the statement to Ms. Postejo, the fact that Aicha Saludares’ murder took place just a few days before Mr. Tayongtong was leaving for the Philippines is capable of supporting an inference for the jury to conclude that Mr. Tayongtong executed his plan to kill Aicha Saludares before leaving Canada.
[59] On this basis alone, the Defence application is to be dismissed.
[60] However, let me go on to deal with post offence conduct in this case. As described in Poitras and MacKinnon, the question to be answered is whether the post offence conduct in this case, based on common sense and human experience, is probative of planning and deliberation.
[61] In this case, the placing of the knife in Aicha Saludares’ hand after the murder and then taking the time to go to the washroom to clean up and pick up medicine for future use, is potentially some further circumstantial evidence which is open to a jury to conclude that Mr. Tayongtong had planned to murder Aicha Saludares that morning after Elma Saludares and Edwin Nene had left for work.
[62] At the very least, a combination of what Mr. Tayongtong said to Ms. Postejo, the timing of the murder and the post offence conduct, is circumstantial evidence which, cumulatively, is open for the jury to infer that Mr. Tayongtong planned and deliberated to murder Aicha Saludares on September 8, 2012.
CONCLUSION
[63] The Defence motion is dismissed.
Ricchetti, J.
Date: October 11, 2017
CITATION: R. v. Tayongtong, 2017 ONSC 5999 COURT FILE NO.: Crim J(P) 496/14 DATE: 20171011
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – NELSON TAYONGTONG
DIRECTED VERDICT RULING
Ricchetti J.
Released: October 11, 2017