Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 2021-05-03 DOCKET: C67022
Watt, Benotto and Jamal JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Nelson Tayongtong Appellant
Counsel: 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 appellant’s 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 mother’s 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 Aicha’s 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 mother’s boyfriend found Aicha’s 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: I’m guilty.
The Court: All right. I’ll 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 I’m going to deal with his...
Appellant: I’m guilty.
The Court: … case in a couple of - I’m going to deal with his case in a couple of minutes?
Appellant: I’m so sorry. I want to tell the truth that I’m 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 don’t love me anymore. She pretended everything she do to me.
The Court: Okay. Sir…
Appellant: That’s why I tell the truth.
The Court: All right. I’m 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, I’m 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. We’ll deal with Mr. Tayongtong if the …
Appellant: I’m guilty. That’s the truth. Justice, I’m guilty.
The Court: Thank you.
Appellant: That is the truth.
The Court: Thank you. All right.
Appellant: Justice, I’m guilty. I tell the truth. Justice, I’m guilty. I am so sorry for what happened between me and my wife, what happened to us. I’m telling the truth. I don’t want to lie anymore. It’s better for me to tell the truth. It’s better for me to tell the truth. Justice, I’m guilty.
The Court: Thank you.
[9] The presiding judge immediately conducted a summary fitness inquiry. The appellant’s 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 appellant’s 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 appellant’s 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. Daly’s 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 appellant’s 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 appellant’s 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. Daly’s 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:
- The placement of the blade was unusual in that it is standing straight up as though to keep it on its edge.
- There was no aspirated blood from Aicha on the blade but there was everywhere else.
- 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.
- 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 appellant’s 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 appellant’s 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 appellant’s 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. Prakash’s conclusions because the appellant did not engage with him.
[32] Finally, while the evidence did bolster the Crown’s 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 appellant’s 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 appellant’s 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 Aicha’s 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 appellant’s 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 appellant’s state of mind.
- Section 35: there was no evidence about the appellant’s 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 appellant’s 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 appellant’s stroke and concluded that little weight should be given to this fact. His reasons explain:
The Defence points to Mr. Tayongtong’s 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. Chan’s 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 judge’s 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.”
Footnotes
[^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.
