COURT FILE NO.: CrimJ(P) 496/14 DATE: 20170704 DATE CORRECTED: 20180613 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN Crown

v.

NELSON TAYONGTONG The Defendant

BEFORE: Ricchetti, J.

COUNSEL: N.J. Bridge and G. Hendry for the Crown M. Moon and K. Perchenok for the Defendant

HEARD: May 18, 2017

RULING ON IN-COURT STATEMENTS

Correction Notice

June 13, 2018: The year listed in para. 18 of the ruling has been changed from 2011 to 2015, and the year listed in para. 68 of the ruling has been changed from 2017 to 2015.

Correction Notice

January 17, 2018: The year listed in paras. 1, 8 and 16 of the original ruling have been changed from 2017 to 2015.

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 APPLICATION

[1] The Crown seeks a ruling on the admissibility of in-court statements made by Mr. Tayongtong on March 11, 2015 and March 17, 2015.

[2] The Defence opposes.

[3] At the completion of the application, this court advised counsel that Mr. Tayongtong’s statements on both dates were admissible and that reasons would follow. These are those reasons.

POSITION OF THE PARTIES

[4] The Crown submits that Mr. Tayongtong's in-court statements on both days are admissions against interest made in public and, therefore, admissible. The Crown disputes that the in-court statements were made to a person in authority and, therefore, the "confession rule" has no application.

[5] The Defence submits that Mr. Tayongtong's in-court statements were made in the presence of a person in authority and, therefore, the Crown must prove the statements’ voluntariness at law beyond a reasonable doubt. The Defence submits the Crown has not proven beyond a reasonable doubt that Mr. Tayongtong had an operating mind at the time he made the in-court statements. This is the only Oickle “consideration” relied on by the Defence during this application.

[6] In the alternative, the Defence submits that, even if the in-court statements were not made to a person in authority, the Defence has established, on a balance of probabilities, that Mr. Tayongtong did not have an operating mind at the time.

[7] In the further alternative, the Defence submits that the in-court statements, if admitted, will lead to an unfair trial since the issue of Mr. Tayongtong's mental fitness will become evident to the jury during the admission of the in-court statements.

[8] In the further alternative, the Defence submits that the in-court statements on March 17, 2015 are protected statements under s. 672.21 of the Criminal Code.

THE BACKGROUND

[9] On September 8, 2012, Aicha Saludares was murdered.

[10] Mr. Tayongtong was Ms. Saludares' husband at the time.

[11] Mr. Tayongtong was arrested on September 19, 2012 for the murder of Ms. Saludares. Mr. Tayongtong has remained in custody from the time of his arrest.

[12] Mr. Tayongtong has been represented by counsel at all relevant times.

November 13, 2014 Assessment

[13] On November 13, 2014, the Court ordered an assessment to determine whether Mr. Tayongtong was fit to stand trial. After an assessment by CAMH, Mr. Tayongtong was found fit to stand trial.

March 11, 2015 Court Appearance

[14] Mr. Tayongtong and his counsel appeared in court on March 11, 2015 for a "to be spoken to" attendance before Justice Durno. Officer Collagiovanni was present in court. A Crown attorney was also present in court.

[15] While Justice Durno was dealing with another matter in the courtroom, Mr. Tayongtong interrupted the proceeding and, despite efforts by Justice Durno to have Mr. Tayongtong sit down, Mr. Tayongtong continued to make a number of statements without any questioning by Justice Durno or any other person present. Mr. Tayongtong made the following statements:

• I want to tell the truth that I'm guilty, what happened between me and my wife.
• I love her so, so much. But she don't love me anymore. She pretended everything she do to me
• That's why I tell the truth.
• Tell the truth that I am the one who killed my wife.
• I'm guilty. That is the truth. Justice, I'm guilty.
• That is 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. It's better for me to tell the truth. Justice, I'm guilty. I tell the truth.

[16] During the March 11, 2015 attendance, Mr. Tayongtong stated that he no longer wanted to be represented by counsel. Subsequently, Mr. Tayongtong made the following additional statements:

• I'm ready.
• To tell the truth.
• But I want to tell the truth. I don't want to extend it. I want to be in jail.
• Q. What's the charge? A. Okay. well, because of my wife. I killed my wife. They used me. They - they used me so they could get more money and they brought me to the mental across border boundaries and they just used me.

[17] The presiding judge ordered an assessment to determine whether Mr. Tayongtong was fit to stand trial pursuant to s. 672.1(1) (a) of the Criminal Code.

March 17, 2015 Court Appearance

[18] Mr. Tayongtong returned to the court again on March 17, 2015. Earlier that same day, Mr. Tayongtong had been assessed by CAMH for fitness to stand trial. CAMH reported to the court that a further review was warranted.

[19] When Mr. Tayongtong attended before the presiding justice, the presiding justice was prepared to remand Mr. Tayongtong to a hospital for 60 days fitness assessment. During the proceedings Mr. Tayongtong made the following statements:

• Judge, I want to finish it.
• I don't need a lawyer.
• I am telling the truth. I'm guilty.
• I am guilty that I killed my wife for what they have done to me. They are crazy.

[20] The presiding justice made the Assessment Order.

May 14, 2015 Assessment

[21] An Assessment Report, dated May 14, 2015, was prepared by Dr. Daly, a psychiatrist, at the Southwest Centre for Forensic Mental Health Care. Dr. Daly wrote:

It is my opinion to a reasonable degree of medical certainty and based on the balance of probabilities that Mr. Tayongtong does not have a qualifying mental disorder and therefore is fit to proceed. It is further my opinion that Mr. Tayongtong is feigning symptoms of mental illness. It is further my opinion that Mr. Tayongtong's feigning does not confound his diagnostic picture enough to impair the ability to form an opinion relating to fitness, and therefore the presumption of fitness (as is required in the cases where evidence is lacking or inconclusive) is not required here. It is further my opinion that there is no real reason to suspect Mr. Tayongtong is less fit than any member of the general public. It is further my opinion that Mr. Tayongtong has indeed demonstrated fitness in multiple ways while here at the Southwest Centre for Forensic Mental Health Care that suggests that he well surpasses the minimum standard set forth in R. v. Taylor of "limited cognitive capacity." It is further my opinion that Mr. Tayongtong has demonstrated a capacity well beyond this, demonstrating he has analytic capacity and has the ability to act in his own best interest, and thus even if this higher standard were employed, Mr. Tayongtong would meet that standard.

August 11, 2016 Evidence of Dr. Prakash

[22] The Defence requested this court to consider the evidence of Dr. Prakash, a psychiatrist, given on August 23, 2016 at a Crown application for a treatment order under s. 672.58. The Crown did not oppose.

[23] Dr. Prakash first saw Mr. Tayongtong on August 11, 2016, and on two subsequent occasions, before testifying. Mr. Tayongtong was not cooperative with Dr. Prakash and refused to answer his questions, would become agitated and the interviews would be terminated. During his testimony, Dr. Prakash described his interaction with Mr. Tayongtong during this period of time and the additional assessment needed:

• So, I feel I need to treat him and then I will be more clearer what is really happening because at the moment I cannot engage.
• [after some treatment] .. We can ask the fitness questions and I will be in a clear position, both by myself and my team. And I am also asking for a psychologist, who hasn't been able to talk to him at all, to do an assessment for malingering again and to see whether - once he settles down whether the tests could be administered by the psychologist and that will give me a clear picture of what is happening.
• At present he is unfit to stand trial. He doesn't meet the criteria of Taylor which is the minimum limited cognitive capacity test for anybody who is to be assessed for fitness. You know the case well, so I don't want to go into the details. I fell that with the treatment the benefit will outweigh the risks and there will be a good chance he'll be fit and he will be able to communicate and assessed better.
• Q by the court: .. can you just give me the basis upon which you conclude he does not meet the Taylor test? A: Psychosis with manic features. Q by the court: have you tried asking him the question? A. I've tried. My staff have tried. ... With treatment I will be able to assess his fitness and also do the psychological testings.
• This is where I feel that good psychological testing, if it can be done once he's calmed down, whether with oral medication or injections, will give us a better idea. As I said, I’m torn between one expert saying ... he's malingering, another expert saying it's psychosis. And I haven't been able to engage him at all, period.
• So, it will give us an opportunity - I can explain better when I do the report next time.

THE LAW

Admissions

[24] The general admissibility of an accused’s “informal admissions” is set out in Watt’s Manual of Criminal Evidence , Thomson Reuters, 2016 at para 36.02:

As a general rule, an informal admission is a statement made by or on behalf of D, which is adduced by P as part of P's case. It may be oral or written. Conduct may also constitute an informal admission.

Admissions are often characterized as an exception to the hearsay rule, yet we do not require a showing of necessity and reliability or other conditions precedent as is the case with the traditional hearsay exceptions. The admissions exception is a function of the adversary system. An admission need not be against the declarant's interest, rather we leave to the opponent to decide whether to adduce the alleged admission in evidence. Its weight is for the trier of fact to decide.

Statements to a person in authority

[25] The “confessions rule” is only engaged when the accused’s statement is made or deemed made to a “person in authority”.

[26] In R. v. T. (S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, the Supreme Court stated that admissions by the accused are presumptively admissible without the necessity of a voir dire . It is only where the accused makes a statement to a “person in authority” that the “confession rule” is engaged requiring the Crown to prove beyond a reasonable doubt the voluntariness of the statement as a prerequisite to its admissibility.

[27] A “person in authority” is described in Watt’s Manual of Criminal Evidence , supra at para 37.02 “Persons in Authority”:

As a general rule, a person in authority is a person engaged in the arrest, detention, examination or prosecution of D. “Examination” includes interrogation or questioning by detention or security guards and members of the prosecutor's office. In some instances, the complainant or the parent(s) of an infant or child complainant may be persons in authority. Any person whom D reasonably believes is acting on behalf of the state, hence could influence or control the proceedings against D, may also be a person in authority.

The test is subjective, but not entirely so. What is involved is an inquiry into D's state of mind. The matter must be resolved by considering it from D's perspective. The core issue is whether D honestly and reasonably believed, when s/he made the statement, that the person with whom s/he spoke had some degree of power over him/her. But the matter is not entirely subjective. There must also be a reasonable basis for the belief that D asserts, hence it is necessary for the trial judge to examine objective factors.

Where D, unaware of the status of his/her collocutor, engages in conversation, the essential subjective belief is lacking, hence the person in authority requirement is not met. It would not seem to matter whether D's lack of knowledge is as a result of deceit on the part of the collocutor or a failure of or inadequate inquiry by D.

The participation of a person in authority is critical to the operation of the confessions rule. Proof of voluntariness is only a condition precedent to admissibility of D's statement if the utterance is made to a person in authority. An inducement offered or threat made by someone who is not a person in authority, or in the presence and without dissent by a person in authority, will not render inadmissible D's statement under the confessions rule.

[28] The starting point for the determination as to who constitutes a “person in authority” is a person engaged in “the arrest, detention, interrogation or prosecution” of the accused. See R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 and R. v. Hodgson, [1998] 2 S.C.R. 449. However, in Grandinetti , the Supreme Court further elaborated on who might be a “person in authority”:

42 However, under the traditional confession rule,

a person in authority is a person concerned with the prosecution who, in the opinion of the accused, can influence the course of the prosecution.

(R. v. Berger (1975), 27 C.C.C. (2d) 357 (B.C.C.A.) , at p. 385, cited in Hodgson , at para. 33 )

43 This, it seems to me, is further elaborated in Hodgson by Cory J.s description of a person in authority as someone whom the confessor perceives to be "an agent of the police or prosecuting authorities", "allied with the state authorities", "acting on behalf of the police or prosecuting authorities", and [page41] "acting in concert with the police or prosecutorial authorities, or as their agent" (paras. 34-36 and 47). He amplified this theory as follows:

Since the person in authority requirement is aimed at controlling coercive state conduct, the test for a person in authority should not include those whom the accused unreasonably believes to be acting on behalf of the state. Thus, where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her, then the receiver of the statement is properly considered a person in authority. In other words, the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief... .

... there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status. A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority over the accused, is not sufficient to establish them as persons in authority for the purposes of the confessions rule... . [T]he person in authority requirement has evolved in a manner that avoids a formalistic or legalistic approach to the interactions between ordinary citizens. Instead, it requires a case-by-case consideration of the accused's belief as to the ability of the receiver of the statement to influence the prosecution or investigation of the crime. That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities. [paras. 34 and 36]

[29] As a result, there is no fixed or finite category of who might be “persons in authority”. In R. v. T. (S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, the Supreme Court stated that a “person in authority” is determined from accused's point of view:

a) If the accused does not subjectively believe the person can control or influence the proceedings against the accused, then that person is not a person in authority;

b) However, if the accused subjectively believes that the person can control or influence the proceedings against the accused in the context of the circumstances surrounding of making of the statement(s), and the accused's belief is objectively reasonable then, the person is a “person in authority” for determining the admissibility of the statement(s).

[30] The accused bears an evidentiary burden on the “person in authority” issue. The accused’s evidentiary burden is to demonstrate that there is a valid issue to consider. See R. v. Hodgson, [1998] 2 S.C.R. 449.

[31] Once the accused discharges this evidentiary burden, the burden shifts to the Crown to establish beyond a reasonable doubt that either the person is not a person in authority, or, if this burden cannot be discharged, that the statement was made voluntarily (i.e. the application of the confession rule).

[32] The Ontario Court of Appeal has found that members of the Crown Attorney’s office are “persons in authority”. R. v. B. (A.) (1986), 50 C.R. (3d) 247, 26 C.C.C. (3d) 17 (Ont. C.A.); leave to appeal refused.

Statements in the presence of persons in authority

[33] The fact a statement was made in the presence of a person in authority does not necessarily engage the confessions rule. In R. v. Parnerkar (No. 2) (1974), 17 C.C.C. (2d) 113 (Sask. C.A.) the issue was whether a statement made by the accused to a nurse, overheard by a police officer, was admissible. The Saskatchewan Court of Appeal concluded that the unsolicited statement to a third party was admissible:

[41] My second observation is that I know of no principle of law which renders an unsolicited statement, made to a person not in authority, inadmissible without a voir dire simply because such statement may have been overheard by a police officer. The authorities are rather to the contrary view: Regina v. Towler (1968), 65 W.W.R. 549 , 5 C.R.N.S. 55 , [1969] 2 C.C.C. 335 ; Rex v. Emele (1940), [1940] 2 W.W.R. 430 , 74 C.C.C. 76 (Sask. C.A.) , and particularly Mackenzie J.A. at p. .80 in his reference to Rex v. Hoo Sam (1912), 5 Sask. L.R. 180 , 1 W.W.R. 1049 , 20 W.L.R. 571 , 19 C.C.C. 259 , 1 D.L.R. 569 (C.A.) .

[42] There are authorities however, to the effect that if as a result of an inducement, promise or threat, an admission is made to a person not an authority in the presence of a person in authority such evidence may be inadmissible without a voir dire: Rex v. Bahrey (1934), [1934] 1 W.W.R. 376 (Sask. C.A.) ; and Regina v. Cleary (1963), 48 Cr. App. R. 116 .

[43] In the present case there is no evidence whatever that the statements related to Nurse Eyuke resulted from any inducement held out by her to Parnerkar. She testified she never asked Parnerkar any question relating to his personal problems. The only question which she asked him was as to his education as she said he seemed such an unusual and interesting person and had made reference to his education. She said that Parnerkar was anxious to talk to her and that the matters which he related to her were as a result of his own motivation and desire. There is nothing in the evidence to suggest otherwise.

[44] I cannot accept the argument of learned counsel for Parnerkar that the learned trial Judge erred in holding that Nurse Eyuke was not a person in authority. In my view the evidence clearly establishes that she was not a person in authority. That being so, he quite properly ruled the statements to be admissible in evidence without the necessity of a voir dire. In doing so he applied the law as stated by Viscount Dilhorne in Deokinanan v. The Queen , [1969] 1 A.C. 20 , 52 Cr. App. R. 291 , [1968] 2 All E.R. 346 , when in delivering the opinion of the Judicial Committee he said at p. 33: “There is, however, in their Lordships’ opinion, no doubt that the law as it is at present only excludes confessions induced by promises when those promises are made by persons in authority.”

[34] In R. v. Carr [1997] O.J. No. 1429 (Gen. Div.) , Justice Chapnik determined a voir dire was necessary where the statement had been made to a paramedic but in the presence of a police officer. To be clear, Justice Chapnik was, at this stage, only determining whether a voir dire needed to be held. Justice Chapnik described the “novel” issue as:

...the narrow point in issue has not been judicially determined; that is, whether a voir dire is required where the statement was made not to, but in the presence of, a police officer who clearly was a person in authority in circumstances where no threat of inducement is alleged.

[35] The court concluded that:

11 The determination of whether an individual confronting an accused was in law a person in authority requires a careful factual investigation. In the administration of justice, accused persons must be assured of fair treatment at the hands of authority figures. In my opinion, the very presence of the police officer in this case induced an atmosphere prejudicial to the accused.

12 When the statement was elicited, Officer Karklins was situated in a confined area in close proximity to the accused. He was in uniform. Mr. Carr had been placed under arrest. In my view, the circumstances import a situation where voluntariness is in issue and must be proven. The ambulance attendants, although not in law persons in authority, were, in effect, clothed with that authority.

[36] Justice Chapnik ultimately found that the statements were voluntary. See R. v. Carr [1997] O.J. No. 1646 .

Residual discretion

[37] At common law, a trial judge has the discretion to exclude otherwise admissible evidence where the effect of the admission of the evidence would result in an unfair trial to the accused because the probative value is overborne by the prejudicial effect (being the only issue raised by the Defence). See R. v. Mohan, [1994] 2 S.C.R. 9. See also R. v. Buric (1996), 48 C.R. (4th) 149, 106 C.C.C. (3d) 97 (Ont. C.A.); affirmed , [1997] 1 S.C.R. 535, 114 C.C.C. (3d) 95

[38] In R. v. Frimpong (2013), 2013 ONCA 243, 1 C.R. (7th) 242 (Ont. C.A.) what constitutes prejudice in this context was described as:

i. evidence which threatens the fairness of the trial;

ii. evidence which cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process; or

iii. evidence where there is a real risk the jury will misuse or be unable to properly assess the evidence regardless of the trial judge's instructions.

[39] The entire context of the accused statement must be available for consideration by the trier of fact. In R. v. Hunter 2001 45 Cr. (5 th ) 345 (Ont. C.A.) small portions of statements by the accused were overheard but without the entire context. In Hunter , the statements were excluded because the court determined it was impossible:

a) to know the meaning of the overheard words; or

b) to otherwise conclude that the words represent a complete thought, regardless of context.

Crown cannot introduce the Accused’s mental state

[40] The Crown cannot raise or introduce the issue of the accused’s mental fitness over the objection of the accused. This would violate the accused’s s. 7 Charter rights. See R. v. Swain, [1991] 1 S.C.R. 933.

Statements made in Court

[41] Generally, statements made in court during a proceeding are admissible. In R. v. Paoenessa and Paquette (1982), 27 C.R. (3d) 179, 66 C.C.C. (2d) 300 (Ont. C.A.); affirmed , [1983] 1 S.C.R. 660, the Court of Appeal held that a statement made in court to the magistrate was not subject to the confessions rule because the magistrate was not to a person in authority:

The confession rules apply only where the accused makes a statement to a "person in authority", i.e., someone engaged in the arrest, detention, examination or prosecution of the accused. Paquette's evidence at his bail hearing was a public statement in open court presided over by a magistrate (provincial judge). Early cases (e.g., R. v. Cooper et al. (1833), 5 Car. & P. 535 , 172 E.R. 1087 ), that hold that in such a situation the statement is made to the magistrate and that he is a person in authority are premised upon a concept of the office of magistrate which is far different from that office as it exists today. In early times, the function of the magistrate and the justice of the peace were partly investigatory (see R. v. Lambe (1791), 2 Leach 552 , 168 E.R. 379 ). The magistrate, as investigator or interrogator is no longer a part of the Canadian system of criminal justice and as a result the modern magistrate is not a "person in authority" so as to attract the operation of the rules of evidence relating to confessions.

We are left, therefore, in a position where the common law rules of evidence say nothing which would exclude the earlier testimony of Paquette from his trial.

[42] In R. v Boulet, [1978] 1 S.C.R. 332, the Supreme Court stated:

The courts have long made a distinction between statements made by the accused out of court to persons in authority and those which are made in a judicial proceeding. The first are admitted in evidence once the presiding judge has decided alone, without the jury, after a voir dire, that they were freely and voluntarily made, the onus of proving these conditions being on the prosecution: R. v. Warickshall [ (1783), 1 Leach 263 , 168 E.R. 234 .]; Rex v. Baldry [ (1852), 2 Den. 493 , 169 E.R. 568 .]; Ibrahim v. Rex [ [1914] A.C. 599 .]; Piché v. The Queen, [1971] S.C.R. 23 .]; Powell v. The Queen [ [1977] 1 S.C.R. 214 .]. This Court has nevertheless held that statements made to a person in authority are not inadmissible merely because they are required by law: (Walker v. The Queen, [1939] S.C.R. 214 .]); other courts have, however, ruled that the obligation imposed by law to make a statement out of court does not exempt the prosecution from showing on a voir dire that the statement was not obtained by a constraint other than that of the law: Reg. v. Cleaveley (1966), 49 C.R. 326 .] and Reg. v. Fex (1973), 12 C.C.C. (2d) 239 .]. This Court did not deal with the question, at least not expressly, in Marshall v. The Queen, [1961] S.C.R. 123 .].

The situation is different for statements made by the accused during a judicial proceeding. Some such statements are not made under oath. This is true, for example, with statements made after a warning, following a preliminary inquiry, by person committed for voluntary examination. It is also true of guilty pleas. The courts have generally held that statements of this type are admissible evidence because they are given voluntarily: Wigmore, On Evidence (3rd edition), Vol. 3, at pp. 298 to 302; Rex v. Lambe [ (1971), 2 Leach 552 , 168 E.R. 339 .]; Rex v. James (1912), 19 C.C.C. 391 .]; Rex v. Bahrey (1934), [1934] 1 W.W.R. 376 .] In the last case, however, the accused had inadvertently been placed under oath: Reg. v. Dietrich (1970), 1 C.C.C. (2d) 49 .]. Nevertheless, evidence of a guilty plea withdrawn with leave of the court is inadmissible in a subsequent proceeding: Thibodeau v. The Queen, [1955] S.C.R. 646 .].

[43] The Court of Appeal in R. v. Dietrich (1970), [1970] 3 O.R. 725 (C.A) dealt with whether statements made in the context of a guilty plea were admissible in a subsequent trial (but not where the court permitted the guilty plea to be withdrawn).

19 The cases referred to other than Thibodeau establish that testimony or statements of an accused on a previous trial or occasion may be treated as an admission at a subsequent trial for the same offence. It is difficult to see why a plea given at an abortive trial of this type should stand in any different position. In the present instance, the plan and the remarks of the accused's counsel form an integral part of the particular case which the Crown sought to present....

The Operating Mind

[44] In this case, the only “voluntariness issue” relied on by the Defence is the “operating mind” requirement described in R. v. Oickle, 2000 SCC 38.

[45] In R. v. Whittle, [1994] 2 S.C.R. 914 the Supreme Court described the “operating mind” requirement as a limited mental component that requires the accused to have sufficient cognitive capacity to understand what he or she is saying, and what is said by others:

The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice.

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above.

(emphasis added)

Protected Statements under the Criminal Code

[46] The Criminal Code 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.

(emphasis added)

THE ISSUES

[47] Before turning to the issues to be decided on this application, one issue that does not need to be decided is whether a voir dire must be held. A voir dire was held on this application on the admissibility of the statements.

[48] The issues to be determined are:

March 11, 2015 Statements

i. Were Mr. Tayongtong’s statements on March 11, 2015 made to a person in authority?

ii. If not, has the Defence established on a balance of probabilities that Mr. Tayongtong did not have an operating mind at the time?

iii. If the statements were to a person in authority, has the Crown proven beyond a reasonable doubt that Mr. Tayongtong had an operating mind at the time?

iv. In any event, should the statements be inadmissible because the statements would disclose to the jury that Mr. Tayongtong may be suffering from a mental illness?

March 17, 2015 Statements

i. Were Mr. Tayongtong’s statements on March 17, 2015 made to a person in authority?

ii. If not, has the Defence established on a balance of probabilities that Mr. Tayongtong did not have an operating mind at the time?

iii. If the statements were to a person in authority, has the Crown proven beyond a reasonable doubt that Mr. Tayongtong had an operating mind at the time?

iv. In any event, should the statements be inadmissible because the surrounding context would disclose to the jury that Mr. Tayongtong may be suffering from a mental illness?

v. Are Mr. Tayongtong’s statements “protected statements” under the Criminal Code?

THE ANALYSIS

March 11, 2015 Statements

i) Were the statements made to a person in authority?

[49] The Defence submits that Mr. Tayongtong’s statements were made in the presence of Detective Colagiovanni and the Crown, persons in authority, thereby engaging the confessions rule.

[50] I disagree. Detective Colagiovanni and the Crown were no different than any other member of the public in the courtroom. Neither asked Mr. Tayongtong any questions. None of Mr. Tayongtong’s statements were made or directed to either Detective Colagiovanni or the Crown. Mr. Tayongtong had counsel present. Mr. Tayongtong’s statements were spontaneous, volunteered statements made in a public courtroom to the presiding justice.

[51] There is a further significant problem with the Defence position. All proceedings against an accused are held in open court – a public place. See s. 486(1) of the Criminal Code. Subject to an order of this court, members of the public are entitled and are often in attendance in the courtroom. As such, the statements by Mr. Tayongtong were statements made in an open and public courtroom. Any member of the public would be in a position to testify as to the statements made or a transcript of the court proceeding, duly certified, could be introduced into evidence. See s. 23 of the Canada Evidence Act. Simply because a person in authority happens to be in the public place where the statement was made, does not, in my view, alter the admissibility of the statement.

[52] The Defence did not submit that the presiding justice was the “person in authority”. Even if this had been suggested, I would not have found the presiding justice to be a person in authority. The presiding justice does not fall into the classic category of a “person in authority” described in Grandinetti . As for the broader definition of persons in authority in T. (S.G.) , supra, I accept that there may be circumstances where the presiding justice might be a “person in authority”. That would depend on the circumstances. In this case, there is no evidence that Mr. Tayongtong’s statements were made to the presiding justice because he subjectively believed that the presiding justice had power over Mr. Tayongtong or that, by making the statements, it would affect how the presiding justice would administer justice in Mr. Tayongtong’s case.

ii) If not, has the Defence established on a balance of probabilities that Mr. Tayongtong did not have an operating mind?

[53] The Defence submits that, if this court finds Mr. Tayongtong’s statements were not made to a person in authority, the Defence has established on a balance of probabilities that Mr. Tayongtong did not have an operating mind. As such, the Defence submits Mr. Tayongtong’s statements should be excluded. No law was provided to support this position but, for the purpose of this application only, let me accept this proposition of law and deal with this submission on the basis whether the Defence has established on a balance of probabilities that Mr. Tayongtong did not have an operating mind at the time of the statements.

[54] It is clear that Dr. Daly’s May 14, 2015 Report does not assist the Defence on this issue. In fact, the report shows Mr. Tayongtong had the necessary cognitive ability during Dr. Daly’s 60 day assessment period leading up to the May 14, 2015 Report.

[55] For the reasons set out below, Dr. Prakash’s evidence on August 11, 2016, given the timing of, the failure by Mr. Tayongtong to engage with Dr. Prakash and his staff during the assessment, and the prior assessment of feigning by Dr. Daly, this court finds that Dr. Prakash’s opinion does not assist the Defence on this issue or establish that Mr. Tayongtong did not have an operating mind on March 11, 2015.

[56] The Defence has not established, on a balance of probabilities, that Mr. Tayongtong did not have an operating mind on March 11, 2015.

iii) If the statements were to a person in authority, has the Crown proven beyond a reasonable doubt that Mr. Tayongtong’s statements were voluntary?

[57] Even if this court had accepted that Mr. Tayongtong’s statements were made to a person in authority (and the confession rule applied), this court would have nevertheless found the Crown had established beyond a reasonable doubt that Mr. Tayongtong had an operating mind on March 11, 2015.

[58] Mr. Tayongtong had counsel, who was present that day. He had been in custody for 2 ½ years. Mr. Tayongtong said he was tired of lying, said he killed his wife and said he wanted to plead guilty. The suggestion that an accused’s statement that he committed the offence and simply wants to get the matter over by way of a guilty plea is, by itself, not novel or raises question regarding an accused’s cognitive ability.

[59] The words and statements of Mr. Tayongtong on March 11, 2015 do not, by themselves, raise any question or doubt regarding Mr. Tayongtong’s ability to understand what he was saying on that date.

[60] However, there is un-contradicted evidence that Mr. Tayongtong did have the necessary cognitive ability on March 11, 2017. Mr. Tayongtong was found to be fit to stand trial just two months later after a 60 day assessment leading up to May 14, 2017. More importantly, the May 14, 2015 Report suggested, very strongly, that Mr. Tayongtong had demonstrated a cognitive ability “well beyond” the “limited cognitive ability” necessary for fitness to stand trial. Given the fact the mental capacity necessary for “fitness to stand trial” and “operating mind” are essentially the same as described in Whittle , supra, this becomes the best and only evidence as to Mr. Tayongtong’s operating mind on March 11, 2015.

[61] It is also important to note that Dr. Daly found Mr. Tayongtong was “feigning” during the assessment. The reason this is significant is because, Dr. Prakash, who saw Mr. Tayongtong approximately 1 ¼ years later, relied heavily on Mr. Tayongtong’s refusal to speak with him. It was clear that Dr. Prakash wanted a psychologist and his staff to interview Mr. Tayongtong for a proper and full assessment. In my view, because of the timing and the basis upon which Dr. Prakash provided his limited opinion, Dr. Prakash’s prior testimony does not raise any doubt regarding Mr. Tayongtong’s operating mind on March 11, 2015.

[62] Even if Mr. Tayongtong’s statements were made to a person in authority, this court would have found on this record that the Crown had proven, beyond a reasonable doubt, that Mr. Tayongtong had an operating mind on March 11, 2015.

iv) In any event, should the statements be ruled inadmissible because the surrounding context would disclose to the jury that Mr. Tayongtong may be suffering from a mental illness?

[63] The Defence submits that by permitting Mr. Tayongtong’s statements on March 11, 2015 to be introduced by the Crown, it will necessarily result in the introduction to the jury of Mr. Tayongtong’s possible mental issues, which it has, as of this time, chosen not to advance.

[64] The Crown submits that the March 11, 2015 statements can be edited to avoid any reference to Mr. Tayongtong’s possible mental illness. In fact, the Crown included, in its Application Record, a reduced/redacted portion of the transcript of the March 11, 2015 proceeding it proposes to introduce at trial. This proposed transcript was contained in the Crown’s Application Record. The Crown submits that this redacted transcript eliminates any reference to Mr. Tayongtong’s possible mental illness and, yet, leaves the context in place. It would appear that the references to Mr. Tayongtong’s possible mental illness were eliminated without loss of context.

[65] If counsel are not able to agree on what portions of Mr. Tayongtong’s exchange on March 11, 2015 are to form part of the Crown’s case, I will arrange for an attendance to hear submissions on what portions of the March 11, 2015 transcript can be introduced by the Crown.

CONCLUSION ON THE MARCH 11, 2015 STATEMENTS

[66] Subject to any further redaction or addition as may be ordered, Mr. Tayongtong’s in-court statements on March 11, 2015 are admissible.

March 17, 2015 Statements

i) Were the statements made on March 17, 2015 made to a person in authority?

[67] For the same reasons set out above for the March 11, 2015 attendance, this court finds that Mr. Tayongtong’s statements were not made to a person in authority.

ii) If not, has the Defence established on a balance of probabilities that Mr. Tayongtong did not have an operating mind at the time?

[68] CAMH had, on March 17, 2015, prior to the court appearance, recommended a further fitness review that morning. However, the result of that assessment review was Dr. Daly’s May 14, 2015 Report which concluded Mr. Tayongtong was fit to stand trial. To conclude that Mr. Tayongtong did not have an operating mind on March 17, 2015 but did have the necessary cognitive ability (and hence, an operating mind) during the assessment period leading to the May 14, 2015 Report would be mere speculation.

[69] For the same reasons set out above, the Defence has not established on a balance of probabilities that Mr. Tayongtong did not have an operating mind on March 17, 2015.

iii) If the statements were to a person in authority, has the Crown proven beyond a reasonable doubt that Mr. Tayongtong had an operating mind at the time?

[70] There is no evidence that anything changed affecting Mr. Tayongtong’s cognitive ability in the intervening week from March 11, 2015 to March 17, 2015. It is accurate that there was a lengthy discussion of an assessment for fitness to stand trial at this court appearance. However, that discussion between the presiding judge and counsel regarding a fitness assessment, by itself, is not evidence that Mr. Tayongtong did not have the cognitive ability necessary for an operating mind on March 17, 2015.

[71] For the same reasons set out above, even if Mr. Tayongtong’s statements were made to a person in authority, this court would have found that the Crown had proven beyond a reasonable doubt that Mr. Tayongtong had an operating mind on March 17, 2015.

iv) In any event, should the statements be ruled inadmissible because the surrounding context would disclose to the jury that Mr. Tayongtong may be suffering from a mental illness?

[72] The Defence takes the same position on these statements as it did for the March 11, 2015 statements.

[73] Having reviewed the transcript for March 17, 2015 I am satisfied that Mr. Tayongtong’s statements on March 17, 2015 can be introduced by the Crown without loss of context or disclosing that Mr. Tayongtong may be suffering from a mental illness.

[74] Should counsel not be able to agree on those portions of the transcript of March 17, 2015 to be included in the Crown’s evidence, I will arrange for an attendance to hear submissions in advance of the trial.

v) Are Mr. Tayongtong’s statements “protected statements” under the Criminal Code?

[75] Mr. Tayongtong’s statements on March 17, 2015 were not made “during the course and for the purposes of an assessment or treatment”. As a result, any statements made by Mr. Tayongtong on March 17, 2015 are not “protected statements”.

CONCLUSION ON THE MARCH 17, 2015 STATEMENTS

[76] Subject to any further redaction or addition as may be ordered, Mr. Tayongtong’s in-court statements on March 17, 2015 are admissible.

Ricchetti, J.

Date Released: July 4, 2017

Date Corrected: June 13, 2018

COURT FILE NO.: CrimJ(P) 496/14

DATE: 20170704

DATE CORRECTED: 20180613 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – NELSON TAYONGTONG Ruling Durno J.

Date Released: July 4, 2017

Date Corrected: June 13, 2018