CITATION: R. v. Tayongtong, 2017 ONSC 6027

COURT FILE NO.: Crim J(P) 496/14

DATE: 20171011

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Crown

v.

NELSON TAYONGTONG

Defendant

BEFORE: Ricchetti, J.

COUNSEL: N.J. Bridge and G. Hendry for the Crown

M. Moon and K. Perchenok for the Defendant

HEARD: September 11, 2017

EVIDENTIARY 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 ISSUE

1The parties seek a ruling on the admissibility of statements made by Mr. Tayongtong to the court during a plea inquiry.

2On September 13, 2017, this court advised counsel that the statements made by Mr. Tayongtong during the plea inquiry were not admissible. Reasons would follow. These are those reasons.

THE FACTS

3Mr. Tayongtong is charged with the first degree murder of Aisha Saludares on September 8, 2012.

4After plea discussions, an agreement was arrived at between the Crown and Defence that Mr. Tayongtong would plead guilty to second degree murder.

5Mr. Tayongtong was represented by counsel during the plea discussions and during the court’s plea inquiry to second degree murder.

6The court conducted a plea inquiry in court.

7Mr. Tayongtong confirmed to the court he wished to plead guilty to second degree murder; that he was doing so voluntarily; that he was aware he was giving up his right to a trial; and that he understood he could not admit facts which he knew were false.

8Mr. Tayongtong admitted to the court that he had caused the death of Aicha Saludares by an illegal act.

9When asked whether he intended to cause death to Aicha Saludares, Mr. Tayongtong went on to say:

She was first to stab me. And I accepted the stab that she gave to me and then I, then she wanted to kill me, that's why I was supporting myself. I didn't want to kill her, that's why I ran away but I didn't know that I have inflicted so many wound on her.

I was defending myself but I didn't expect that I did that; that, that I did inflict so many wounds on my wife. I didn't do it on purpose.

10The plea inquiry came to an end. The court rejected the guilty plea to second degree murder.

11The matter proceeded to trial.

12The Defence advises that the issue of duress may be raised at trial.

POSITION OF THE PARTIES

13The Crown seeks to admit the statements made during the plea inquiry solely for the cross-examination of Mr. Tayongtong should he testify that he killed Aicha Saludares because he was acting under "duress".

14The Crown submits that the defence of duress, where the accused had the intention to kill the victim but without the necessary moral culpability because of the duress from a third party, is inconsistent with self defence, where the accused had no intention to kill the victim but commits the act(s) to defend oneself.

15The Defence submits that all statements made during the course of a plea inquiry are inadmissible.

THE LAW

Canadian Authorities

16There are very few Canadian authorities specifically on this point.

17Clearly, where the court permits a plea to be withdrawn, the Crown cannot adduce evidence of the prior aborted plea against an accused. See Thibodeau v. The Queen, 1955 57 (SCC), [1955] SCR 646:

….Be this as it may, I am of opinion that, where a plea of guilty has been withdrawn and a plea of not guilty substituted by leave of the Court, the Judge before whom the case comes for trial following the plea of not guilty should assume that the Judge who granted leave to change the plea did so on sufficient grounds and should treat the original plea, for all purposes, as if it had never been made.

In Wigmore on Evidence 3rd Edition, Vol. IV, page 66, s. 1067, the learned author says:—

For criminal cases (where a withdrawn plea of guilty is later offered) the few authorities are divided.

I have examined the authorities referred to and prefer the reasoning of those judges who have held the evidence in question inadmissible. In my opinion the dissenting judgment of Wheeler J. in State v. Carta ⁷, deals satisfactorily with the question and reaches the right conclusion. I refer particularly to the following passage at page 415:—

Considerations of fairness would seem to forbid a court permitting for cause a plea to be withdrawn, and at the next moment allowing the fact of the plea having been made, with all its injurious consequences, to be admitted in evidence as an admission or confession of guilt by the accused. The withdrawal is permitted because the plea was originally improperly entered. No untoward judicial effect should result from the judicial rectification of a judicial wrong.

The majority hold that the fact that the former plea may be explained will be a sufficient protection to the accused. Such a ruling places upon him a burden of disproving a fact which does not exist; for the withdrawal eradicated it. It brings him before the jury under the heavy cloud of suspicion created by his plea of guilty when he is entitled to come before the jury with the presumption of innocence shielding him. It makes him prove again that his plea was wrongly entered when that, fact has already been judicially ascertained and settled by a court of competent jurisdiction and cannot be opened unless a higher court finds an abuse of that court’s discretion.

For the above reasons I have reached the conclusion that on the trial of an accused who has pleaded not guilty evidence that he had previously pleaded guilty to the charge but had been allowed to withdraw such plea is legally inadmissible; from which it, of course, follows that evidence of the former plea can neither be given for the prosecution nor elicited from the accused in cross-examination.

It should perhaps be mentioned in passing, that, even if the question of the admissibility of evidence of the withdrawn plea in the case at bar had fallen to be determined under the rules regarding extra-judicial confessions, the evidence ought clearly to have been rejected in view of the uncontradicted evidence quoted above as to the representations made by a person in authority to the appellant while in custody which influenced him to enter the plea.

(emphasis added)

18Thibodeau did not specifically deal with the issue whether statements of fact admitted by the accused during the aborted plea are admissible in a subsequent trial.

19The Court of Appeal in R. v. B. (D. M.), 2005 1487 (ON CA), 2005 194 OAC 51 touched upon this issue. In B. (D.M.), the issue was whether statements by the accused to a probation officer regarding a pending sentence, that was to be the subject to a proposed plea (which plea was eventually struck) was admissible. The Court of Appeal's endorsement does not set out what the accused said to the probation officer. Further, this was not a situation where the accused's statements were made in a public, open court as in the current case. The Court of Appeal found that the accused's statements were "inextricably tied" and had been "given in the context of that [struck] plea". As a result, the Court of Appeal held the statements should have been excluded on the basis of trial fairness and "Once the plea was struck out, it was as if it had never happened. In the circumstances, fairness required that the appellant's admissions to the probation officer be brought under the same protective umbrella":

3In our view, the evidence of the probation officer should not have been admitted. It was inextricably tied to the appellant's guilty plea in respect of the May 13, 2002 offence, a plea that was eventually struck out by the provincial court judge before whom it was entered. Given that the plea itself was inadmissible, we think that as a matter of trial fairness, the appellant's statement to the probation officer, given in the context of that plea, should also have been excluded. [page606]

4By way of analysis, assuming that the appellant's remarks to the probation officer were otherwise admissible, in the circumstances, the admission of the probation officer's evidence rendered the trial unfair. It should have been excluded in accordance with the principles enunciated by the Supreme Court of Canada in R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 101 C.C.C. (3d) 193 and this court's decision in R. v. Milne (1996), 1996 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 107 C.C.C. (3d) 118 (C.A.).

5In coming to that conclusion, we have considered the whole of the circumstances, including the method arrived at by the trial Crown and the trial judge to prevent the jury from hearing the appellant's withdrawn guilty plea (something which everyone agreed the Crown could not lead in chief). To accomplish this, Crown counsel agreed that in chief, he would not elicit from the probation officer her occupation, the circumstances under which she spoke to the appellant, or how she had come to be in possession of a police report which detailed the complainant's allegation regarding the May incident and which she reviewed in total with the appellant.

6In our view, the method chosen to keep the withdrawn plea from the jury was doomed to failure. Given the highly damaging admissions made by the appellant to the probation officer, if the appellant had any hope of overcoming them, he had to take the witness stand on his own behalf and explain the circumstances surrounding his meeting with the probation officer and the reason why he had not told her the truth. This would have required him to explain his withdrawn guilty plea, the fact that he was speaking to a probation officer in respect of an impending sentence hearing and the reason why he had falsely admitted the complainant's allegations in respect of the May incident.

7In those circumstances, the defence cannot be faulted for eliciting much of this information from the probation officer in cross-examination. Realistically, the defence had no other choice.

8This is but one example of the unfairness that resulted from the admission of the probation officer's evidence. It is symptomatic of our overriding concern, expressed earlier, that the appellant's dialogue with the probation officer was inextricably linked to his guilty plea. Simply put, it would not have occurred but for that plea. Once the plea was struck out, it was as if it had never happened. In the circumstances, fairness required that the appellant's admissions to the probation officer be brought under the same protective umbrella.

(emphasis added)

20In R. v. Draskovic, (1971), 1971 1252 (ON CA), 5 C.C.C. (2d) 186 (Ont. C.A.), the Court of Appeal chose not to expressly deal with whether statements made during plea discussions are privileged, instead finding that the accused's statements to the police officer were not part of the "plea bargaining process":

4 The facts with respect to the "plea bargaining" submission are that after the accused had been arrested, arraigned, and was in custody on several charges, he was brought into Court for a further remand. At that time the investigating officer had decided to lay further charges, based on further investigation, and the accused was so advised, and cautioned on the new charges. While the accused was in the prisoner's dock, prior to the opening of Court, he motioned to one of the officers to come over to the dock and said: "I will plead guilty to those five charges if you will drop the other, you know, the armed robbery." To this the officer testified that he replied: "We will proceed on all charges." Evidence of this conversation was tendered by the Crown and after a voire dire, was admitted by the trial Judge. It is submitted to us that this evidence ought not to have been admitted because the conversation was privileged as part of "plea bargaining".

6 Without expressing any views as to whether there exists in Ontario or Canada any privilege with respect to discussions between counsel for the accused and counsel for the Crown with respect to what charges will be proceeded with and what pleas will be made, commonly referred to as "plea bargaining", I am of the opinion that the topic is irrelevant in this case. What occurred was in no sense "plea bargaining" but was simply a volunteered statement made by the accused to the detective, who had no authority to do anything other than report the making of the statement to someone else. In addition, the accused himself on the voire dire denied in the strongest possible terms that he had made the statement at all. It seems rather incongruous, to say the least, to have an accused deny that he had any discussion with a police officer as to how he would plead and what charges should be proceeded with, and then have his counsel subsequently take the position that if notwithstanding the denial, the Court finds such a statement was made, it should be regarded as privileged as part of "plea bargaining". We therefore gave no effect to this submission for the accused.

(emphasis added)

21This situation is not akin to the use of Agreed Statement of Facts in a subsequent trial (R. v. Baksh (2005) 2005 24918 (ON SC), 199 C.C.C. (3d) 201 (Ont. S. C.), or an accepted plea to a lesser or included offence at a re-trial (R. v. Dietrich, (1970) 1970 377 (ON CA), 1 C.C. C. (2d) 49 ( Ont. C. A.) or a plea to a lesser offence made before the jury (R. v. Dobson (1985) 1985 3581 (ON CA), 19 C.C.C. (3d) 93 (Ont. C.A.).

Other Jurisdictions

22In the United States of America, this issue generally does not arise because Rule 410 of the Federal Rules of Evidence specifically make inadmissible against a defendant in a civil or criminal case "a statement made during a proceeding on" a "guilty plea later withdrawn". Many of the individual states have passes similar rules.

23In the United Kingdom, in cases of serious or complex fraud, the policy of the Attorney General's Office deals with the admissibility of plea discussions. First, the policy requires undertakings by the Crown and the Defence as to the confidentiality and use which may be made of the plea discussions. This requires counsel to specifically consider and decide what is admissible in the event a plea does not materialize. The policy provides that where the court rejects the plea agreement, the parties remain bound by the confidentiality in the undertaking of any statements made in the course of the plea discussions.

1989 Law Reform Commission of Canada Working Paper 60 on Plea Discussions and Agreements

24Recommendation 23 stated:

Evidence of a guilty plea, later withdrawn, or of an offer to plead guilty to an offence, or of statements made in connection with any such plea or offer, should be inadmissible on the issue of guilt or credibility in any proceeding.

(emphasis added)

25The authors considered this a recommendation based on "our notion of fairness" and that the right to withdraw a guilty plea "would be illusory if it could be used against the accused at a subsequent trial". The recommendation was designed to "promote the disposition of criminal cases without trial be permitting compromise negotiations before the trial".

ANALYSIS

26The United States Federal Rules, the United Kingdom plea discussions policy on major cases and the recommendation of the 1989 Law Reform Commission, have a common goal – where the plea agreement is abandoned, withdrawn or struck, the plea discussions and any statements made in furtherance of the plea are inadmissible whether on the notion of trial fairness or privilege.

27There can be no doubt, based on Thibodeau, that the accused’s plea, after rejected or withdrawn, the accused’s “plea” cannot be used as an admission against the accused. It is as though the plea was never made.

28Are the accused's statements, in an open and public court, in a plea inquiry any different? In my view, it would be inconsistent to hold that any statements by the accused, where the plea is struck or never accepted, is admissible.

29The Supreme Court in Thibodeau cited the clear unfairness to an accused should the rejected plea be admitted as evidence on the issue of guilt.

Considerations of fairness would seem to forbid a court permitting for cause a plea to be withdrawn, and at the next moment allowing the fact of the plea having been made, with all its injurious consequences, to be admitted in evidence as an admission or confession of guilt by the accused.

30The Court of Appeal in B. (D. M.) also expressed concern regarding trial fairness should statements made by the accused be admitted which were “inextricably linked” to the aborted plea process.

31If such statements, made during the plea inquiry, could be used against the accused, such statements would be highly prejudicial. The accused would, for all practical purposes, be forced to testify to explain away the statement. The aborted plea would inevitably come out during the explanation. As for relevancy, the relevancy of these statements would depend many facts needed to be put into evidence including any encouragement, incentive, or explanation the accused had for making such statement(s). Admissibility of the statement(s) might require disclosure to the trier of fact the discussions between the Crown and the Defence counsel and the discussions between the Defence counsel and the accused. This would open up unnecessary and unwarranted scrutiny into these areas.

32The Court of Appeal in B.(D.M.), held that statements made "inextricably linked" to the aborted plea are inadmissible. Whether this is based on the principle of privilege or a trial fairness analysis, the result is the same – the accused’s statements during a plea discussions are inadmissible where the plea is not accepted by the court.

33Clearly, in this case, Mr. Tayongtong’s statements during the plea inquiry are “inextricably linked” to the aborted plea. There is no principled basis to find Mr. Tayongtong’s statements made in furtherance of the plea inquiry are in any different than Mr. Tayongtong’s plea or statements made during plea discussions.

34Lastly, by admitting such statements when the plea is struck (or withdrawn or the discussions do not result in an accepted plea), would result in a chilling effect on plea negotiations. I agree with the statement of Justice McCombs in R. v. Lake (Ontario, November 24, 1997):

In my view, a ruling favourable to the Crown in the circumstances of a case such as this would have a profound chilling effect upon resolution discussions, an essential component of the administration of justice, and would do irreparable harm to the public interest in the proper administration of justice...

35See also R. v. Dennis Cook, 1998 CarswellOnt 5682 (O.C.J.).

36Similar concerns were expressed in R. v. L'Herault, 2016 SKQB 344, after the Crown's case, the accused, on trial for first degree murder, indicated he wished to plead guilty to manslaughter. The Crown rejected this plea. This was done in the absence of the jury. Justice Danyliuk determined that the tendered plea was not admissible citing the "pallor" this would cast over plea negotiations.

Voluntariness

37In my view it is not necessary to engage in a voluntariness analysis with regard to these statements.

CONCLUSION

38Mr. Tayongtong's statements during the plea inquiry are not admissible.

Ricchetti, J.