Court File and Parties

Court File No.: CR 24-1097 Date: 2024/10/11 Ontario Superior Court of Justice

Between:

His Majesty the King, Crown M. Dean, on behalf of the Crown Attorney

- and -

Laureano Bistoyong, Accused J. Stephenson, on behalf of the accused

Heard: September 16, 17, 18, 19 and 23, 2024

Before: A.J. Goodman J.

Reasons for Judgment

Introduction

[1] This is a heartbreaking case. What started out as a large close-knit and joyful family gathering to celebrate a birthday, turned into a horrific and tragic event with the stabbing death of a young man.

[2] The accused, Laureano Bistoyong (“Laureano” or “Bistoyong”) is charged with second degree murder in the death of his cousin, Mark Bistoyong (“Mark”).

[3] At the arraignment, the accused entered a plea of not guilty to the offence as charged but guilty of manslaughter. The Crown did not accept the accused’s plea.

[4] The charge relates to an incident that was alleged to have occurred on July 2, 2023, in the City of Hamilton.

[5] The parties entered into two Agreed Statements of Facts (“ASF”). For the purposes of this judgment, Laureano admitted killing Mark. It is not disputed that Laureano’s actions were a significant and substantial cause of Mark’s death.

[6] Both Crown and defence counsel agreed that the sole issue to be determined is whether the Crown can prove that Laureano had the requisite intent required to elevate this unlawful act homicide to murder. If so, it is axiomatic that he is guilty of second degree murder. If not, then he is adjudged guilty of manslaughter.

Agreed Statement of Fact (“ASF”)

[7] The relevant segments of the ASF include:

Mark was killed by Laureano on July 2nd, 2023. The cause of death was a single stab wound of the chest. The location of the incident was 3 Cadham Boulevard, a residential dwelling in the City of Hamilton. Laureano used a black handled chef’s knife to stab Mark.

Mark was seated between his brothers Adam Bistoyong (“Adam”) and Cain Bistoyong (“Cain”) in the dining area of the home when he was stabbed.

3 Cadham Boulevard is the residence of Larry Bistoyong (“Larry”). Larry is Laureano’s father, and Mark’s uncle.

The parties were gathered at 3 Cadham Boulevard to celebrate Larry’s 60th birthday. There were several guests in attendance, including Mark’s parents Merl Bistoyong (“Merl”) and Victorino Bistoyong (“Victorino”). Laureano was living with his father at 3 Cadham Boulevard, along with his brother Liam Bistoyong.

Prior to the incident, some of the younger guests at the party attended a nearby park to play basketball, including Mark and Laureano. The basketball game was physical, and there was some pushing and shoving between the players. After playing basketball, the players returned to 3 Cadham Boulevard. On the walk back to the residence, everyone appeared to be getting along.

The birthday celebration continued as the players returned to the residence. Guests were situated in various areas of the home, including the living, dining room, kitchen, and backyard areas. Adam, Cain, Liam, and Mark eventually came to be seated in the dining room area of the home.

While the party guests were on the main floor, Laureano went to the basement and vomited. Larry and Liam attended the basement where they observed Laureano to be physically ill and helped to clean up the vomit.

Laureano then attended the kitchen area on the main floor. Shortly thereafter, Laureano approached Mark and stabbed him in the chest. Laureano then retreated into the corner of the room and stood by as family members tended to Mark’s injuries. The stab caused Mark to bleed profusely.

Larry and Liam were still in the basement at the time of the stabbing, but came upstairs after hearing the commotion. Larry approached his son Laureano in the corner, grabbed him and demanded to know what he had done. Laureano appeared to be in shock, and did not respond, except to walk into the kitchen.

Larry observed several knives on the kitchen counter and threw them outside into the backyard. Larry attempted to hold on to his son, but Laureano fled the residence.

911 was called. Family members and first responders performed first-aid and resuscitative measures on Mark, however, these efforts were ultimately unsuccessful, and Mark was pronounced dead in hospital.

Postmortem examination of Mark’s body showed a fatal stab wound of the chest. The stab wound entered the left chest, perforated the left lung, and terminated in the left posterior chest. The wound measured 5.2cm after re-approximation of the edges. The approximated depth of the wound was 16cm; the direction was front to back and downward.

Officers searched the backyard at 3 Cadham Boulevard and located four knives with black handles. These knives were seized by D/Cst. McComb as evidence and submitted to the Centre of Forensic Sciences for testing. Pursuant to forensic testing, Mark’s blood was located on a chef’s knife with an approximate 8.5-inch (220mm) blade.

Laureano Bistoyong was arrested on July 3rd, 2023 for the murder of Mark Bistoyong. He voluntarily surrendered to police. Mark was 16 years old. Laureano was 22 years old.

[8] The Crown called family members who were witnesses to the event, or segments of it, as well as police officers and the pathologist, Dr. Smyk. The defence called two witnesses, the accused’s brother and father.

Positions of the Parties

[9] The Crown submits that Laureano committed murder and had the requisite intent. The Crown says that the court ought to consider all of the circumstances, including what occurred before, during and after the stabbing. The Crown says that its witnesses provided credible and reliable testimony. There is no evidence to suggest any diminished level of intent. Moreover, the evidence related to the basketball game is a red herring and does nothing to negate the Crown’s case. On all the evidence, the Crown submits that the charge has been established beyond a reasonable doubt.

[10] Ms. Stephenson rejects the Crown’s position that her client had the requisite state of mind to commit murder.

[11] The defence submits that Laureano acted in a moment of frustration of being physically sick at home, after being tackled into the fence earlier at the basketball game. As his father had just yelled at him, Laureano was embarrassed and upset. He did not go upstairs intending to kill Mark, or to even hurt him for that matter. He went into the kitchen, and was provoked by his physical illness, and the comments made by others.

[12] The defence says that the evidence is not clear on whether there were any words exchanged between Mark and Laurence just prior to the stabbing, but the location and severity of the injury was a product of physics, and not an intentional act meant to cause death or serious bodily harm. This was an impulsive act driven by frustration, and perhaps to a lesser degree by provocation, which led to the tragic death.

[13] The defence contends that the Crown has failed to meet its burden for murder. There were no words exchanged prior to the stabbing, or any words that were said were either not heard, or not remembered by any of the witnesses. The defence submits that there are other reasonable inferences as to Laureano’s state of mind when he took the knife off the counter and walked over and stabbed his cousin in the left upper chest. These other inferences ought to raise a doubt and accrue to the benefit of the accused.

[14] The defence submits that in the absence of any direct evidence of intent, and in light of the significant gaps in the evidence in that regard, Laureano ought to be acquitted of second degree murder, and convicted of the offence of manslaughter.

Legal Principles

[15] An accused is entitled to the benefit of the presumption of innocence and is not required to testify or present any evidence. The defence is not required to disprove the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. The defence is not required to substantiate their theory of the case. The burden of proving guilt of an accused lies upon the prosecution throughout the trial. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of the offence charged against him.

Reasonable Doubt

[16] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities, yet less than proof to an absolute certainty."

[17] The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable, possible, or likely guilt.

[18] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.

[19] I am mindful that I must consider all of the evidence fully and fairly and not assess the defence evidence with any greater scrutiny than the witnesses presented by the Crown, or arbitrarily place less weight on the testimony of the defence witnesses. As mentioned, the burden of proof always remains with the Crown, attorney irrespective of whether the defence calls evidence or not.

Assessing Credibility

[20] The framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. This seminal test is straightforward. First, if the trier of fact believes the evidence of an accused, then the accused must be acquitted. However, even if I do not believe the accused’s testimony, or the evidence adduced by the defence, I would be obliged to dismiss the charge, or in this case, a conviction for manslaughter, if it leaves me in a position of reasonable doubt of the charged offence. Finally, even if I am not left in doubt by the evidence of the defence, I am required to ask myself, having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the accused’s guilt for murder.

[21] A court's verdict should not be based on a choice between the accused’s evidence and the prosecution’s evidence, but on whether, based on the whole of the evidence, the court is left with a reasonable doubt as to the accused’s guilt: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin, [1988] 2 S.C.R. 345.

[22] It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts, and similarly the trier can accord different weight to different segments of the evidence that is accepted.

[23] Most of the evidence in this particular case is direct evidence, what witnesses personally saw or heard, or did not see or hear. However, there are certain inferences of fact that may be drawn from the evidence.

[24] The relevant legal considerations that must be applied in addressing the relationship between circumstantial evidence and proof beyond a reasonable doubt was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, at paras. 35-38. See also R. v. B. (S.), 2018 ONCA 807 at paras. 122-124; and R. v. Garciascruz, 2015 ONCA 27.

[25] When assessing circumstantial evidence, I must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. These theories or other reasonable possibilities must be based on logic and experience applied to the evidence, or the absence of evidence. The basic question is whether the circumstantial evidence, viewed logically, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at paras. 37-38.

[26] However, there is a difference between the drawing of reasonable inferences from the evidence and improper speculation or conjecture of fact. Speculation is the forming of a theory or the drawing of an inference without proven evidence that logically supports the theory or inference.

Application of the Legal Principles

[27] Section 229 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, provides that murder has three essential elements, all of which Crown counsel must prove beyond a reasonable doubt. The first two are: that Laureano caused Mark’s death; that Mark’s death was caused unlawfully. Those two elements have been conceded by the defence.

[28] The third element for murder is where a person causes the death of another human being by means of an unlawful act and either intends to cause death or intends to cause serious bodily harm that the person knew was likely to cause death and was reckless whether the other person died or not. The Crown is not required to prove both elements, one will suffice.

[29] Manslaughter is the killing of another human being by an inherently dangerous unlawful act. If an accused commits an unlawful act in circumstances where a reasonable person would foresee some risk of harm of more than a minor or trifling nature, and as a result a person dies, that accused is guilty of manslaughter even though he did not mean to cause death or bodily harm that he knew was likely to cause death. In other words, a person can be found guilty of manslaughter for causing the death of another even if he didn’t intend to kill the victim, provided that he caused the death of that victim through an unlawful act that was objectively dangerous.

[30] During the course of submissions, I was referred to the case of R. v. Lee, 2021 ONSC 4064, wherein the jurist employed the term “so dangerous and serious” in describing the requisite essential elements for second degree murder. With respect, the concept of “danger”, or “so serious and dangerous” is merely a descriptor found in Watt’s 2023 Criminal Jury instructions at p. 700. It is not a legal requirement that the Crown must prove to substantiate a conviction for murder. I prefer to adopt the specific language of second degree murder as it is delineated in s. 229 of the Criminal Code and the prevailing appellate jurisprudence on point.

[31] In any event, the Lee case is wholly distinguishable on its facts leading up to the stabbing event in that case. Here, there was no melee that existed or escalated just prior or proximate to the stabbing of Mark. Moreover, the judge in Lee was not certain that the victim’s chest was the intended target of the stabbing. Such is not the case before me. The circumstantial evidence and temporal nature of the events arising in Lee is also distinguishable from the case at bar.

[32] The defence also raises the issue of provocation. While counsel concedes that it is not her strongest argument, she submits that, if applicable, it would reduce a finding of the specific intent for murder to manslaughter.

[33] The essential features of provocation have been described in many cases, including by the Supreme Court in R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761 and by the Court of Appeal in R. v. Singh, 2016 ONSC 3739.

[34] In R. v. Hill, [1986] 1 S.C.R. 313, Dickson C.J.C. identified three general requirements for the defence of provocation:

First, the provoking wrongful act or insult must be of such a nature that it would deprive an ordinary person of the power of self-control. That is the initial threshold which must be surmounted. Secondly, the accused must actually have been provoked. As I have earlier indicated, these two elements are often referred to as the objective and subjective test of provocation respectively. Thirdly, the accused must have acted on the provocation on the sudden and before there was time for his or her passion to cool. [p.324].

[35] In R. v. Thibert, [1996] 1 S.C.R. 37, Cory J. for the majority of the Court collapsed these three requirements into two elements, one objective and the other subjective. I note that in R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, the Supreme Court reiterated the test in Thibert but framed it in terms of four required elements.

[36] These well-established categories include: A wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; which is sudden and unexpected; which in fact caused the accused to act in anger; before having recovered his or her normal control. Objectively, the insult or acts must be sufficient to deprive an ordinary person of the power of self-control. Subjectively, the accused must have acted in response to the provocation suddenly, without time for their passion to cool. Such a response must be distinguished from vengeance.

[37] Much evidence was adduced regarding the basketball game that preceded the event in question. Various witness testified as to the physicality of the game. Some witnesses described the accused as being angry or upset at the level of force being applied during the game, with most participants receiving and creating the pushing and shoving during play. It appears to have been a part of the so-called “street” game consented to by most, if not all, of the participants.

[38] Even if I accept that Mark had gone to some extreme and either pushed, tackled, or otherwise confronted Laureano during the game, which evidence as to the degree of force employed is tenuous, I fail to understand how that negates or otherwise minimizes the requisite state of mind for the homicide. This was not a continuous event. There was a distinct and temporal break in time between the basketball game, the alleged physical contact and the parties’ eventual return back to the house party and the incident. At minimum, 20 minutes, likely longer. Plenty of time for “cooling off”, reflection and clearly not on the “sudden” or in the “heat of passion”.

[39] Upon review, given that there is an absence of a cogent and reasonable evidential basis, I find that there is no air of reality to the partial defence of provocation.

[40] While somewhat novel, I must also reject defence counsel’s submissions with respect to the theory of “reignited provocation” in support of this partial defence. In my view, there is no such concept in Canadian law. Such a notion would be against public policy and would all, but neuter, the strict criteria and evidential requirements of the legal test, as set out in s. 232 of the Criminal Code and the authoritative jurisprudence.

[41] With regards to the issue of post-offence conduct, I accept defence counsel’s submissions and will not consider any such evidence in my ultimate determination of the requisite mens rea in this case.

Analysis

[42] This was a relatively short trial for a homicide case.

[43] The Crown and defence positions on the relevant issue to be decided were clearly stated at the start of the trial: Whether the Crown has proven that Laureano had the requisite mens rea or state of mind for murder. This means that Laureano either intended to kill Mark or intended to cause Mark bodily harm that he knew was likely to cause death and he was reckless whether Mark died or not.

[44] There are several facts that have been established or are not in dispute: The elements leading up to this murder – the date, jurisdiction, identity, the parties, their relationships - have all been proven.

[45] My analysis requires consideration of the degree of concurrency between the wrongful act and the requisite state of mind for murder.

[46] The relevant evidence includes that on July 2, 2023, the entire Bistoyong family gathered to celebrate Canada Day and the 60th birthday of Larry Bistoyong. There is certainly no obvious issues involving any or all parties at the house prior to the stabbing. Laureano and Mark were not close, but there was never any demonstrated animosity between the two young men.

[47] At some point during the evening, all of the cousins went to the nearby park to play basketball. This was not an uncommon event. During the final game, Mark, Cain and Adam were all on the same team. As the physicality of the game increased, so did the frustration of some of the players, although others claimed it was all part of the street game. At one point, Mark tackled (or pushed) Laureano into the chain link fence, with the latter falling to the ground. Laureano was frustrated, but according to some witnesses, acknowledged that he could not fight back because he was older. In any event, the game was ending, and everyone went back to the Bistoyong home. On the walk back, there was no arguing or threatening words exchanged.

[48] Subsequent to the return, there was a period of time where the cousins were in the basement. Ultimately Mark, Cain, Adam and Liam came upstairs and were sitting in the dining room eating some food. Laureano, who was with them for a time, was ultimately found by Liam in the basement being physically ill. He had vomited on the stairs, before making it to the washroom, and he continued to be sick. Liam had come down to help clean up the vomit, and so had Laureano’s father, who asked him what was wrong. When Laurence exited the washroom, he was still holding his stomach and commented to his father that his stomach was upset or hurting because of the “tackle” or “football tackle” from Mark. Laureano then went to the kitchen, where he leaned or was positioned on the kitchen counter.

[49] Soon thereafter, Laureano picked up a knife that was located in the kitchen and walked directly up to Mark, who was seated with his brothers in the dining room. Laureano thrust once from his hip level into Mark’s upper left chest. Mark stood up, and for a brief moment, although holding his chest. Mark said, “what the heck?” as Laureano was backing up and retreating into the kitchen. Understandably, the entire scene became chaotic with confusion and screaming. Mark started to bleed profusely, and his family did everything they could to save him.

[50] Laureano’s father confronted his son, demanding to know what he had done. Laureano was described as having his eyes wide-open, his skin was pale, and he did not respond, perhaps in shock. Laureano’s father was grappling with him and physically shaking him. Soon thereafter, Laureano left the house from the back yard stating, “I’m going, I’m gone”.

[51] With respect to defence counsel’s able submissions, I cannot conclude that her client’s actions were impulsive. Consider the evidence. The accused returned to the house and went into the basement with the others. By the time Laureano and his cousins returned to the home, there appeared to be no issues between all of the cousins. There was no animosity, concerns, no rancour, and all seemed to be copacetic. While Laureano had occasion to vomit on the stairs and explained that he was not feeling well, apparently related to the physical nature of the basketball game, he specifically acknowledged to both Meryl and Rino Bistoyong that he was “good”, or “we’re good” when so queried.

[52] Following this vomiting episode, Laureano went up into the kitchen and was there for a brief period, at least a few minutes or even longer. During this time, Mark was seated in the dining room with his siblings. Without prompting or warning, the accused grabbed the knife from the kitchen - situated either on the counter or in the container nearby, and walked over to Mark, passing by Adam, who was seated to the victim’s left. Laureano approached Mark with the knife predominately concealed. In other words, I am persuaded that it appeared to be secreted or otherwise out of plain view, as to not alert those congregated about the dining room table.

[53] Laureano bent over and plunged the knife directly into Mark’s torso. He then pulled the knife out of Mark’s body and stood back. We don’t know what the accused whispered to Mark, if anything, just prior to the stabbing. Immediately thereafter, Laureano is restrained and struggles with his father, and eventually leaves the home. Just prior to the act, there was no evidence of any threats or apparent animosity exhibited by Mark towards the accused.

[54] I accept the evidence of all of the Crown witnesses, without qualification or reservation. Evidence of Laureano’s intent is established from family members who were in attendance at the time. Most, if not all of these witnesses confirmed that Laureano did not complain or otherwise suggest any ill-will, animosity or anger towards Mark just prior to the stabbing.

[55] I accept the evidence from Leah Legendre, who, from her observations, testified that she saw Laureano’s face and described him as “angry” just prior to stabbing Mark. Other family members testified that the accused displayed no emotion, apparently acting methodical or somewhat stoic, while approaching Mark, including after having just stabbed the victim.

[56] The force of the single stab wound is a factor. Laureano secured the largest “chef style” kitchen knife of the lot. Laureano plunged it to Mark’s chest, going in about 16 cm, almost to the back of the victim’s ribcage. This was followed by the immediate withdrawal of the weapon. To me, this suggests a significant degree of force exerted by the accused through muscle and tissue in order to create such a devastating injury. It is clear to me that such an action to the location of this stab wound, the torso of one’s body, where there are vital organs, would result in serious bodily harm and catastrophic injuries to Mark, with immediate and significant blood loss. I find that the Laureano’s actions leading to death would have been readily apparent to him both objectively and more importantly, on a subjective intent standard.

[57] Frankly, I am still left with a single question. Why did Laureano stab Mark? It is unexplained. Perhaps, it may be as the Crown attorney suggests. The accused was still angered by the way he was treated, pushed or embarrassed at the basketball game that day. While the evidence as to what actually occurred is conflicting, I must be careful not to speculate.

[58] In any event, the motive or reason for the killing is not an essential element that the Crown must establish in order to obtain a conviction for murder.

[59] It is trite law that a person intends the natural outcomes of his or her acts. On the whole of the evidence adduced at trial, I am satisfied that Laureano was a sane and sober person and he intended the natural consequences of his actions at the relevant time. I do not find any reasonable and competing inferences to suggest otherwise.

Conclusion

[60] Laureano’s actions in securing the knife from the kitchen and walking over to the victim, along with his observed behaviour and demeanour before and during the incident does not give rise to any defence or reduced mens rea.

[61] I am satisfied beyond a reasonable doubt that Laureano had the requisite state of mind required for murder. For greater certainty, the accused had the subjective intent and foresight concurrent with his actions at the relevant time. The Crown has established beyond a reasonable doubt that Laureano stabbed Mark and subjectively intended to cause Mark serious bodily harm that he knew was likely to cause death, and was reckless whether the Mark died or not.

[62] Therefore, I find Laureano Bistoyong guilty of second degree murder. A conviction shall be registered on the indictment.

A.J. Goodman J. Date: October 11, 2024