



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tayongtong, 2021 ONCA 281

DATE: 20210503

DOCKET: C67022

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nelson Tayongtong

Appellant

Delmar Doucette, Angela Ruffo and Zahra
    Shariff, for the appellant

Mabel Lai, for the respondent

Heard: March 1, 2021 by videoconference

On appeal from the conviction entered on
    October 18, 2017, and from the sentence imposed on October 27, 2017 by Justice Leonard
    Ricchetti of the Superior Court of Justice,
sitting with a jury
.

Benotto J.A.:

[1]

Aicha Saludares was killed in her home. She had been stabbed 138 times.
    Her estranged husband  the appellant Nelson Tayongtong  was arrested and
    charged with her murder. While in a courtroom awaiting his matter to be spoken
    to, the appellant shouted out that he had killed his wife. Psychiatric
    assessments followed. Upon being found fit to stand trial, a jury convicted him
    of second-degree murder. He appeals his conviction on the grounds that the
    trial judge erred by admitting his in-court statements as evidence and by not
    allowing self-defence and provocation to be left with the jury. He also appeals
    the 17-year period of parole ineligibility established by the trial judge.

BACKGROUND

[2]

Aicha
Saludares emigrated from the Philippines to Canada with her
    family when she was 14 years old. After graduating from high school, she began
    working at the Bank of Montreal where she rose to become branch manager. In
    2003, she married the appellant while on holiday in the Philippines. He
    eventually joined her in Toronto. In 2010, he had a stroke and spent months in
    a long-term health care facility. He no longer worked. A series of financial
    setbacks occurred, and the couple had to sell the family home. Their marriage
    was in difficulty and there were discussions about divorce. Aicha began a
    relationship with another man.

[3]

The appellants health appeared to
    deteriorate, and he planned to return to the Philippines. In September 2012, he
    was days away from departure. Aicha was, at that point, living with her mother
    and
her mothers boyfriend

in
    their apartment in Mississauga. They agreed that the appellant could stay with
    them for a few days until he left for the Philippines.

[4]

On September 8, 2012 Aichas mother and her boyfriend left around 6 a.m.
    to go to work. When they left, Aicha and the appellant were alone in the
    apartment. Surveillance video shows the appellant leaving the building at 7:37
    a.m. At 1:30 p.m., the mothers boyfriend found Aichas dead body lying face
    down on the kitchen floor. A blue-handled knife was in her right hand. She was
    left-handed.  No one else was in the apartment.

[5]

Aicha
suffered a total of 138 wounds, including: 17
    stab wounds and 3 incised wounds to the head; 10 stab wounds and 8 incised
    wounds to the neck; 20 stab wounds to the upper and middle back; 10 stab wounds
    and 1 incised wound to the chest; 14 stab wounds and 8 incised wounds to the
    abdomen; 10 stab wounds and 12 incised wounds to the left arm and hand; 3 stab
    wounds and 12 incised wounds to the right arm and hand; and 1 stab wound to the
    right leg. One of the stab wounds to the head resulted in the knife tip
    breaking off and being lodged in the mandible. None of the twelve knives found
    in the kitchen of the apartment, including the blue-handled knife found in Aicha
s non-dominant
hand, was the source of the
    broken tip.

[6]

Days later, the appellant was found passed out in a
    convenience store and admitted to hospital. He was arrested on September 19,
    2012 and charged with murder. He has remained in custody.

[7]

On November 13, 2014, the court ordered an
    assessment to determine whether he was fit to stand trial. He was assessed by
    Dr. Colleton at the Centre for Addiction and Mental Health and found fit to
    stand trial.

[8]

The appellant was to attend court on March 11, 2015,
    for a routine to be spoken to appearance. His counsel said that before court,
    the appellant had exhibited strange behaviour and wanted counsel fired. Later,
    while in court with his counsel, and waiting for his case to be called, he
    interrupted another matter as follows:

Appellant: Im guilty.

The Court: All right. Ill speak to you in a
    moment, sir. Could the - is the tagalog interpreter here? All right. If you
    could just indicate to this gentleman that Im going to deal with his...

Appellant: Im guilty.

The Court:  case in a couple of - Im going to
    deal with his case in a couple of minutes?

Appellant: Im so sorry. I want to tell the truth
    that Im guilty, what happened between me and my wife. I love her. Because....

The Court: Okay. All right. Sir....

Appellant: I love her so so much. But she dont
    love me anymore. She pretended everything she do to me.

The Court: Okay. Sir

Appellant: Thats why I tell the truth.

The Court: All right. Im going to deal with your
    case

Appellant: Tell the truth that I am the one who
    killed my wife.

The Court: All right Mr. Tayongtong, Im going to
    speak to your case in a couple of moments. I want you to sit down, please.

Minutes later a second exchange took place:

Appellant: Justice

The Court: All right. Well deal with Mr.
    Tayongtong if the

Appellant: Im guilty. Thats the truth. Justice,
    Im guilty.

The Court: Thank you.

Appellant: That is the truth.

The Court: Thank you. All right.

Appellant:
    Justice, Im guilty. I tell the truth. Justice, Im guilty. I am so sorry for
    what happened between me and my wife, what happened to us. Im telling the
    truth. I dont want to lie anymore. Its better for me to tell the truth. Its
    better for me to tell the truth. Justice, Im guilty.

The Court: Thank you.

[9]

The presiding judge immediately conducted a summary
    fitness inquiry. The appellants responses demonstrated an understanding of the
    charges, but the judge nonetheless ordered a fitness assessment pursuant to s. 672.1(1)(a)
    of the
Criminal Code
. The
    matter was adjourned to March 17 when Dr. Colleton would be available at the
    courthouse to conduct the assessment.

[10]

On March 17, Dr. Colleton observed that the appellants mental health
    had deteriorated and that he demonstrated a circular and self-contradictory
    thought process. He concluded that the appellant may not be able to instruct
    counsel and his fitness to stand trial was in question. The judge ordered a 60
    day in-hospital assessment pursuant to s. 672.14(3) of the
Criminal Code
.

[11]

On May 14, 2015, Dr. Daly reported on the appellants fitness. He
    concluded that the appellant was likely feigning mental illness and was fit to
    stand trial.

[12]

In August 2016, his fitness again became an issue and another in-hospital
    assessment was conducted, following which the judge made a make-fit order as
    requested by the Crown. The appellant was treated by Dr. Prakash. The appellant
    was agitated, not cooperative with Dr. Prakash and refused to answer his
    questions. Dr. Prakash said that good psychological testing could be done once
    he is calmed down, whether with oral medications or injections. Dr. Prakash
    added that he was torn between Dr. Dalys view that he was malingering and
    whether he had a psychotic disorder rendering him unfit. Dr. Prakash testified
    that he had not been able to engage him at all.

[13]

The appellant was treated with anti-psychotic medication while subject
    to a series of keep-fit orders.

[14]

The trial began before a jury on September 11, 2017.

THE RULINGS AT TRIAL

[15]

There were two rulings made by the trial judge at issue in this appeal:
    the admissibility of the statements on March 11, 2015; and whether there was an
    air of reality to self-defence and provocation.

The Statements of March 11

[16]

The trial judge ruled that the appellants
    utterances on March 11 were not protected statements.  They were not made to a
    person in authority. They were spontaneous, volunteered statements made in a
    public courtroom to the presiding justice. Their admissibility was not impacted
    simply because the Crown and the investigating officer happened to be in the
    public place at the time.

[17]

The appellants challenge to admissibility, based on
Charter
principles failed. The defence had
    not established, on a balance of probabilities, that the appellant did not have
    an operating mind on March 11, 2015. Even if the confessions rule applied, the
    trial judge would nevertheless have found the Crown had established beyond a
    reasonable doubt that the appellant had an operating mind on March 11, 2015. He
    relied on Dr. Dalys assessment. He concluded that Dr. Prakash did not assist
    the appellant given the failure of the appellant to engage with him.

[18]

The March 11 statements were admitted.
[1]

Self-defence and provocation
[2]

[19]

The appellant asked the court to instruct the jury on self-defence and
    provocation. He argued that an inference could be drawn that Aicha had the
    knife in her hand and was threatening the appellant with it. The trial judge
    ruled that there was no air of reality to support an instruction on either self-defence
    or provocation. He explained:

·

Aicha must have been on the floor when she was
    stabbed. This is evident from the fact that the blood spatter was almost all
    below the countertops. She could not therefore have been standing with the
    knife in her hand.

·

The blue-handled knife was in her non-dominant
    hand. It had her blood on it. There was overwhelming evidence that it was
    placed there after her death:

o

The placement of the blade was unusual in that
    it is standing straight up as though to keep it on its edge.

o

There was no aspirated blood from Aicha on the
    blade but there was everywhere else.

o

The blood spatter pattern was uniform even when
    the knife was removed. There was no spot (or void) behind the blade with no
    blood as there would have been had she been holding it before she died.

o

Aicha had blood over her entire hand. The handle
    marks left on her hand were not consistent with the knife having been grabbed
    by her while alive.

·

The appellants blood was found in the apartment.

·

The appellant was found to have small, healed cuts
    on his fingers and some healed scratches.

·

Aicha had several defensive wounds on her hands and
    arms.

[20]

Following the air of reality test set out in
R. v. Cairney
, 2013 SCC 55, [2013] 3
    S.C.R. 420, the trial judge considered the elements of self-defence and
    provocation.

[21]

He found there was no reasonable inference available to the jury to
    conclude that Aicha first attacked or threatened the appellant. In any event,
    it would defy all logic that the appellant did not use more force than
    necessary to defend himself. She suffered 138 stab wounds. Further, there was
    no evidence that would meet the criteria of any of the
Criminal Code

provisions
    dealing with self-defence.

[22]

With respect to provocation, he found that, without any evidence as to
    what, if any, wrongful act was allegedly done by Aicha, there was no basis for
    the jury to determine whether, objectively, it would cause a reasonable person
    to lose control. Nor was there any evidence of the subjective element. There was
    simply a vacuum that could not be filled by speculation.

ISSUES

(1)

Did the trial judge err by
    admitting the March 11, 2015 utterances?

(2)

Did the trial judge err by
    concluding that there was no air of reality to self-defence or provocation?

(3)

Did the trial judge err by
    imposing a 17-year period of parole ineligibility?

ANALYSIS

(1)

Did the trial judge err by admitting the March 11, 2015 utterances?

[23]

The
    appellant raises four reasons to support his submission that the statements
    should not have been admitted.

[24]

First,
    the appellant submits that the March 11 statements were protected statements
    and therefore inadmissible pursuant to s. 672.21(2) of the
Criminal

Code
because they were made during the course and for the purposes of an assessment
    or treatment directed by a disposition. He urges a broad and liberal
    interpretation of the protection. He submits that the statements were so
    closely linked to the
Taylor

test
    inquiry that they are part of the assessment:
R. v. Taylor
(1992)
, 11 O.R. (3d) 323 (C.A.).

[25]

Second,
    he submits that the statements were analogous to an aborted guilty plea.
    Relying on
Thibodeau v. The Queen
, [1955]
    S.C.R. 646, he submits that when a guilty plea is entered and then permitted to
    be withdrawn, it cannot be adduced at a subsequent trial.

[26]

Third,
    he submits that the statements were not the product of an operating mind and
    thus it creates a great unfairness to the appellant to have the statement
    admitted. Fitness, he submits, is a fluid issue and the fact that the
    appellant was fit after March 11 does not mean he was fit on March 11. Indeed,
    the judge found reasonable grounds to order a fitness assessment on that day.

[27]

Finally,
    the probative value of the statement was outweighed by its prejudicial effect.
    By admitting the statement into evidence, the trial judge effectively
    eliminated potential defences.

[28]

I
    do not agree that the statements fall within the protection of s. 672.21(1)
    which provides:

672.21
(
1
) In this section,
protected statement
means a statement made by the accused during the course and for the purposes of
    an assessment or treatment directed by a disposition, to the person specified
    in the assessment order or the disposition, or to anyone acting under that
    person's direction.

[29]

The
    appellants statements were made in open court, during a to be spoken to
    appearance. There was no assessment underway. They were made before an
    assessment had been ordered and not during the course of or for the purposes of
    an assessment or treatment. They were not made to a person specified in the
    assessment.

[30]

Nor
    do I accept the analogy to a withdrawn guilty plea. The appellant did not
    attempt to plead guilty. He had not been arraigned. There was no plea inquiry,
    no reading of the allegations and no judicial consideration of the plea. The
    appellants utterances were interrupting other ongoing matters.

[31]

The
    trial judge concluded that the appellant had an operating mind when he made the
    statements. He relied on the opinion of Dr. Daly who authored the May 14 report.
    Dr. Daly said that the appellant surpassed the fitness threshold and his
    purported symptoms are feigned. The trial judge was entitled to rely on this
    evidence. The trial judge considered and rejected Dr. Prakashs conclusions
    because the appellant did not engage with him.

[32]

Finally,
    while the evidence did bolster the Crowns case, and increase the risk of
    conviction, it does not follow that the probative value is outweighed by the
    prejudicial effect. Evidence is prejudicial if its reception would threaten
    trial fairness, or there is a real risk that the jury will misuse the evidence:
R. v. Frimpong
,
2013
    ONCA 243, 106 W.C.B. (2d) 326, at para. 18. Those factors do not exist here. There
    was no scope for misuse by the jury as the evidence included the entire context
    of the statement. Also, at the request of the appellants trial counsel, the
    statement was edited to eliminate the implication of the mental health issues.

[33]

The
    trial judge did not err by admitting the March 11, 2015 utterances.

(2)

Did the trial judge err by concluding that there was no air of reality
    to self-defence or provocation?

[34]

The
    appellants theory with respect to self-defence and provocation rests with the
    blue-handled knife.

[35]

There
    are three aspects of the forensic evidence that the appellant says allow for
    the inference that Aicha was holding the knife before she died:

(a)

The blood
    stains lower than the countertops could only have resulted from stab wounds
    which caused bleeding. There could have been stab wounds  such as a stab to
    the heart  that would not have caused immediate bleeding. Aicha could have
    been stabbed in the heart while standing. This would have produced no immediate
    blood loss and would explain why there was no blood spatter above the
    countertop height. The forensic evidence could not identify the sequence of
    stab wounds. Consequently, she could have endured a fatal stab wound while
    standing with a knife in her hand.

(b)

If she had
    been stabbed in the heart while standing it could have resulted in her
    immediate death and a cadaveric spasm causing her to grasp the knife she had
    been holding.

(c)

The
    void of aspirated blood behind the knife could have been the result of her movement
    while on the ground. There was evidence of her hair in various places in the
    kitchen indicating that her body was moving while she was being stabbed on the
    ground. This could explain the lack of a void and eliminate the inference that
    the knife was placed in her hand after her death.

[36]

Ultimately,
    the appellant submits that, by finding that the knife was placed in Aichas
    hand after her death, the trial judge usurped the function of the jury. The
    jury could have found that the knife was in her hand before her death and there
    is thus an air of reality to self-defence and provocation.

[37]

Whether
    there is an air of reality to a defence is a question of law, reviewed on a
    correctness standard:
R. v. Cinous
, 2002 SCC
    29, at para. 55. The air of reality test will be satisfied if there is evidence
    on the record upon which a properly instructed jury acting reasonably could
    acquit:
Cinous
, at para. 51.

[38]

A
    properly instructed jury acting reasonably could not have acquitted on the
    basis of self-defence or provocation, even when the evidence is taken at its
    highest. As the trial judge concluded, the appellants theories are pure speculation.
     Even if the jury believed that Aicha had a knife and threatened the appellant
    with it, there were still significant gaps in the evidence about the subjective
    and objective components of the tests for self-defence and provocation.

[39]

Consider
    the elements of self-defence under each section of the
Criminal
    Code
:

·

Section 34: there was no evidence that Aicha had first attacked
    or threatened the appellant with a knife. Further, as the trial judge said, it
    was not possible to conclude that, if she did attack first, the response was no
    more than necessary to defend himself. In addition, there was no evidence about
    the sequence of events or about the appellants state of mind.

·

Section 35: there was no evidence about the appellants state of
    mind, or whether he retreated as far as reasonably possible.

·

Section 37: it is impossible to conclude that the appellant used
    no more force than necessary to prevent the assault.


[40]

The
    jury would have had to speculate about events surrounding her death and the
    appellants state of mind.

[41]

Similarly,
    there was no evidence with respect to the subjective and the objective analysis
    required to make a determination with respect to provocation, including whether
    the wrongful act was sufficient to deprive an ordinary person of self-control,
    whether the appellant acted in response to the provocation, and whether the
    appellant acted on the sudden before there was time for his passion to cool:
R. v. Tran
, 2010 SCC 58, at paras. 25, 36.

[42]

The
    evidence does not support either defence. Aicha suffered 138 knife wounds,
    contusions, abrasions and defensive wounds. The appellant had a few scratches.
    The knife was in her right hand. She was left-handed. Dr. Herath, the forensic
    pathologist, and Det. Hofstetter, the blood pattern analyst, testified that in
    their opinion the knife was placed in her hand after her death.

[43]

The
    trial judge did not err by concluding that there was no air of reality to
    self-defence or provocation.

(3)

Did
the trial judge err by imposing a 17-year
    period of parole ineligibility
?

[44]

The
    appellant submits that the period of parole ineligibility is unfit. He says the
    trial judge failed to consider that the appellant had suffered a stroke and had
    no history of domestic violence.

[45]

The
    trial judge did refer to an absence of prior domestic abuse. But this is not a
    mitigating factor.

[46]

The
    trial judge was aware of the appellants stroke and concluded that little
    weight should be given to this fact. His reasons explain:

The Defence points to Mr. Tayongtongs stroke in
    2010 to submit that he is disabled. I am not persuaded this is a significant
    factor. First, the evidence is that, during the few months leading up to the
    murder, Mr. Tayongtong took martial arts lessons, went to the gym, walked
    frequently, and was capable of giving massages. In addition, Dr. Chans
    evidence was that this was a mild stroke and had seen him attend numerous
    medical appointments unassisted. Lastly, given the amount of strength and
    effort needed to commit this murder, it belies any finding that Mr. Tayongtong
    was physically disabled to the extent it impacts his sentence.

There is also evidence that Mr. Tayongtong used a
    cane when necessary to persuade a doctor that he needed social assistance. But
    there is also some evidence that Mr. Tayongtong had used a cane on at least
    another occasion. I am not prepared to go so far as to find that the evidence shows
    Mr. Tayongtong was a manipulative man when it came to his physical abilities.

[47]

An appellate court may only interfere with a sentence if there is an
    error of law or principle that has an impact on the sentence or the sentence is
    demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 2 S.C.R. 1089, at para. 11. I see no error in
    principle in the trial judges discretionary conclusion that the parole ineligibility
    period should be 17 years. The brutality of the murder of a domestic partner
    and the lack of mitigating factors permit the court to impose a term of up to
    17 years:
R. v. French
,
2017 ONCA 460, at para 31. There was no error in principle and the
    sentence was fit.

CONCLUSION

[48]

I would dismiss the appeal as to conviction. I would grant leave to
    appeal the sentence but dismiss the sentence appeal.

Released: May 3, 2021 DW

M.L. Benotto J.A.

I agree David Watt J.A.

I agree M. Jamal J.A.





[1]
There was also a March 17, 2015 statement which the trial judge
    ruled admissible. The Crown did not seek to admit it at trial and it does not
    form part of this appeal.



[2]

Self-defence and provocation in this case are governed by
    the former provisions, not the current scheme.


