CITATION: R. v. Tayongtong, 2017 ONSC 6026
COURT FILE NO.: CrimJ(P) 496/14
DATE: 20171011
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: October 5, 2017
ADDENDUM ENDORSEMENT ON MR. TAYONGTONG'S IN-COURT STATEMENTS’ RULING
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial or these reasons shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
THE CHARGE
[1] Mr. Tayongtong is charged with the first degree murder of Aicha Saludares on September 8, 2012.
THE Prior APPLICATION
[2] On July 4, 2017 this court released a ruling finding that in-court statements by Mr. Tayongtong on March 11 and March 17, 2015 were admissible.
[3] Counsel were invited to agree upon the portions of the statements made during the in-court appearances to be admitted in evidence.
THE CURRENT APPLICATION
[4] Counsel disagreed on the inclusion of one portion of the March 11, 2015 proceeding.
[5] At issue were the statements of Justice Durno on page 13 of the transcript.
[6] After dealing with another matter, Justice Durno returned to deal with this matter. Justice Durno stated:
All right. Mr. Tayongtong, is back. The interpreter is here. All right. I am told that there is no interpreter available to facilitate an assessment tomorrow. There is an interpreter available the next date that the doctor is in the building. So I'm going to make the order for next Tuesday. I will actually make the order next Tuesday because it's limited to five days without the consent of the accused.
But I will indicate at this point that I am persuaded from the defence counsel's submissions, and my observations today, there are reasonable grounds to believe an assessment is necessary to determine whether Mr. Tayongtong is unfit to stand trial pursuant to 672.11 (a) a five day assessment will be ordered on March 17th. Mr. Tayongtong is remanded in custody to March 17th at nine o'clock, at which time I'll make the assessment order. Mr. Tayongtong, I'll get a report from the doctor and we'll see what the doctor says at that time and how your case is going to proceed. Any questions from counsel?
THE POSITION OF THE PARTIES
[7] The issue is context. The Defence submits that this passage provides context to Mr. Tayongtong's prior admissions that he killed Aisha Saludares. The Crown submits it does not.
ANALYSIS
[8] There is no doubt that the Defence seeks to use the comments of Justice Durno to urge the jury to question the reliability of Mr. Tayongtong's prior admissions that he had killed Aicha Saludares.
[9] There are several problems with this Defence position:
a) The passage is NOT a statement by Mr. Tayongtong. It is a statement by the court. Does it add context to what was admitted by Mr. Tayongtong earlier that he had killed his wife? In my view, it does not. The presiding justice simply went on to deal with whether an order should be made under s. 672(11)(a) of the Criminal Code;
b) The court has the jurisdiction to order an assessment where it has "reasonable grounds to believe" the accused is not fit to stand trial. The court has no particular expertise to determine whether the accused in fact is not fit to stand trial. Whether the presiding justice's belief is correct or not, does not assist on the reliability of Mr. Tayongtong's prior admissions that he had killed his wife. The Defence would use the presiding justice's comments to suggest to the jury that they should not rely on Mr. Tayongtong's earlier admissions given that the presiding justice had concerns regarding Mr. Tayongtong’s fitness to stand trial. There is no basis to draw that conclusion from the presiding justice's consideration and decision regarding an assessment of Mr. Tayongtong; and
c) Equally important, the Defence disputes that, if the presiding justice's statements were to be admitted, for balance and trial fairness, the results of the assessment would have to be made available to the jury. The reason the Defence objects is that, after the assessment was completed, in May 2015 the psychiatrist concluded that Mr. Tayongtong was fit to stand trial and opined that Mr. Tayongtong was "faking" his mental condition. Essentially, the Defence wants the presiding justice's comments about making an order for an assessment to "blunt" the jury's reliance on Mr. Tayongtong's admissions but doesn't want the resulting psychiatrist's assessment because the result of that very assessment might "bolster” the jury's reliance on Mr. Tayongtong's admissions.
[10] Besides, Mr. Tayongtong has been found fit to stand trial. The Defence would be misleading the jury with any suggestion that Mr. Tayongtong's admissions should be weighed by someone whose fitness to stand trial was questioned. Mr. Tayongtong's fitness to stand trial has already been determined, settled and has not been raised again by the Defence.
CONCLUSION
[11] The presiding justice's statements on page 13 of the March 11, 2015 transcript are not admissible.
Ricchetti, J.
Released: October 11, 2017
CITATION: R. v. Tayongtong, 2017 ONSC 6026
COURT FILE NO.: CrimJ(P) 496/14
DATE: 20171011
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NELSON TAYONGTONG
ADDENDUM ENDORSEMENT ON MR. TAYONGTONG'S IN-COURT STATEMENTS’ RULING
Ricchetti J.
Date Released: October 11, 2017