CITATION: R. v. Tayongtong, 2017 ONSC 6192

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

DATE: 20171017

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: October 10, 2017

SELF DEFENCE/PROVOCATION RULING

THE ISSUE

[1] The Defence sought the court to include, in its final jury charge, instructions on self-defence and provocation.

[2] On October 11, 2017, this court ruled there was no air of reality to the defences of self-defence or provocation. Reasons would follow. These are those reasons.

BACKGROUND

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

The Evidence

[4] On September 8, 2012, just before 6:00 a.m., Elma Saludares and Edwin Nene, her boyfriend, left the apartment for work. Aicha Saludares and Mr. Tayongtong were still in the apartment.

[5] Edwin Nene returned to the apartment around 1:30 p.m. Aicha Saludares’ body was found on the kitchen floor in a large pool of blood. She was facing downward. Aicha Saludares had defensive wounds. There were wounds to Aicha Saludares’ front and back, neck, legs, and abdomen. One knife wound went into Aicha Saludares' heart. There were a total 138 stab and incise wounds to Aicha Saludares’ body.

[6] There was a lot of blood in the kitchen. There was a pool of blood under Aicha Saludares. There was also a lot of blood spatter, almost all below the countertops. The 360 degree blood spatter was consistent with the position of Aicha Saludares’ body on the kitchen floor. Aicha Saludares was stabbed repeatedly while on the floor.

[7] The blood in the kitchen was Aicha Saludares’ blood. Mr. Tayongtong’s blood was not found in the kitchen but, given the amount of Aicha Saludares blood, his blood could have been covered over by Aicha Saludares' blood.

[8] There was a blue handled knife in Aicha Saludares’ right hand. Aicha Saludares was left handed.

[9] The blue handled knife had Aicha Saludares’ blood on the handle. No one else’s blood was found on the blue handled knife. To be perfectly clear, Mr. Tayongtong's blood was not found on the blue handled knife.

[10] The evidence is overwhelming that the blue handled knife was placed in its location after Aicha Saludares' death:

a) The placement of the blue handled knife is unusual. The blade is standing straight up as though put that way to keep it on its edge;

b) there is no exporiated blood (blood with air droplets) from Aicha Saludares on the blade of the blue handled knife but there is exporiated blood everywhere else in the vicinity of the blue handled knife;

c) the blood spatter pattern is uniform even when the blue handled knife is removed (i.e. there is no void behind the blade as there should have been if it was there at the time). This evidence suggests that, while Aicha Saludares was on the kitchen floor and was expelling blood from her airways, the blue handled knife was not there; and

d) Aicha Saludares had blood over her entire hand. The handle marks left on Aicha Saludares' hand is inconsistent with the blue handled knife having been fully grabbed by her while alive.

[11] There was also a broken tip of a knife left in one of Aicha Saludares’ bones. The rest of the knife with the missing tip was not recovered at the scene or elsewhere.

[12] One of the knives in the kitchen drawers was found to have Aicha Saludares’ blood.

[13] Mr. Tayongtong was not in the apartment. Elma Saludares identified Mr. Tayongtong, on a surveillance video, as leaving the apartment building at approximately 7:37 a.m.

[14] The evidence establishes that Mr. Tayongtong was in the apartment that morning and was bleeding:

a) there is one set of bloody footprints from the kitchen to the bathroom and out the front door. The footprints do not belong to any of the first responders or the two persons who found Aicha Saludares that afternoon. The footprints were never matched to anyone including Mr. Tayongtong. However, there were drops of blood along the path of the bloody footprints. The DNA analysis established these blood drops are from Mr. Tayongtong;

b) blood was found on Mr. Tayongtong’s prescription medication package where a large number of pills had been removed. The DNA analysis established this blood belonged to Mr. Tayongtong; and

c) blood was found in the bathroom sink, bathtub and light switch. The DNA analysis established this blood belonged to Mr. Tayongtong.

[15] When Mr. Tayongtong was found by the police on September 19, 2012 at a local hospital. Mr. Tayongtong was found to have small healed cuts on his fingers and some healed scratches. A forensic officer attended to photograph Mr. Tayongtong that day. The forensic officer who took the photographs, testified that he had seen other photographs of defensive wounds to knife attacks. While he did not know what these wounds would have looked like 11 days earlier, he stated that, “at least to some extent, it was possible” that Mr. Tayongtong’s injury could have been from defensive wounds but, he continued, it was also possible they could have been from the person holding the knife. There was no other evidence as to when or how Mr. Tayongtong had come to have these cuts and scratches.

THE LAW

Self-Defence

[16] The self-defence provisions in the Criminal Code at the time of Aicha Saludares’ death provided:

34 (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

35 Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

37 (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

Provocation

[17] The provocation provision in the Criminal Code, at the time of Aicha Saludares’ death, provided:

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3) For the purposes of this section, the questions

(a) whether a particular wrongful act or insult amounted to provocation, and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Air of Reality Test - Generally

[18] The air of reality test was recently described by the Supreme Court in R. v. Cairney, [2013] 3 SCR 420, 2013 SCC 55:

[21] Neither of these approaches is strictly correct. “[T]he air of reality test [is not] intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day”: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 54, quoted by Fish J. in R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at para. 16. The question is whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 41; R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 21. The trial judge may engage in a limited weighing of the totality of the evidence to determine if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation; see the companion case R. v. Pappas, , 2013 SCC 56, [2013] 3 S.C.R. 452. This Court, per Abella J., described the appropriate approach to the air of reality test in Mayuran:

In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence. It is not enough for there to be “some evidence” supporting the defence (Cinous, at para. 83). The test is “whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (Cinous, at para. 65). For defences that rely on indirect evidence or defences like provocation that include an objective reasonableness component, the trial judge must examine the “field of factual inferences” that can reasonably be drawn from the evidence (Cinous, at para. 91). [para. 21]

(emphasis added)

[19] The air of reality test must be applied to each of the essential elements of the defence. See R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272 at para. 23.

[20] While the ultimate burden of proof on self-defence remains with the Crown throughout, there is an evidential burden on the accused to ensure that, on the evidence, there is an air of reality to each of the requisite elements of the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at pp. 30-31.

[21] The trial judge must determine whether the evidence if believed could permit a properly instructed jury acting reasonably to acquit. It follows that the trial judge cannot decide issues of credibility. Further, the trial judge must not weigh evidence, make findings of fact, or draw determinate factual inferences. Whether and how far to accept any of the evidence is a matter for the jury. See R. v. Cinous 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 88.

[22] Where inferences are or need to be drawn, the trial judge engages in a limited weighing of the evidence to determine if a jury, acting reasonably, could draw the inferences necessary to acquit or have a reasonable doubt as to whether the accused is guilty of the offence, on the basis of the defence being put forward. I agree with the Defence that an inference in support of the defence need not be the only inference to be drawn from the evidence, but the inference in support of the defence must be a reasonable inference available from the evidence.

[23] The trial judge does not decide or consider whether the defence will succeed or even might succeed.

[24] It is not necessary for the accused to testify for self-defence or provocation to be put to the jury. However, there must be direct or circumstantial evidence, adduced at the trial from any source, from which the properly instructed jury, acting reasonably could find that the defence applied or that there was a reasonable doubt that the defence applied.

The Requirements for s. 34(1) Self-Defence

[25] The wording of s. 34(1) sets out four elements necessary for self-defence :

a) an unlawful assault;

b) the assault was not provoked;

c) lack of intent to kill or cause grievous bodily harm; and

d) the force used be no more than is necessary for self-defence.

[26] Any use by the accused of excessive force deprives the accused of the benefit of self-defence under this section. See R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 SCR 265 and R. v. Gee, 1982 CanLII 198 (SCC), [1982] 2 SCR 286.

The Requirements for s. 34(2) Self-Defence

[27] The essential elements of self-defence under s. 34(2) was recently canvassed in R. v. Phillips, 2017 ONCA 752:

[78] The old s. 34(2) defence contained three elements:

• The existence of an unlawful assault;

• A reasonable apprehension of a risk of death or grievous bodily harm; and

• A reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary: R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at p. 12; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 93 - 94.

[79] Each element possessed subjective and objective components. The subjective component focused on the accused's beliefs and perceptions. The objective component focused on their reasonableness, based on the situation the accused perceived: Cinous, at para. 94. For each element, the old s. 34(2) first required the court to inquire into the subjective perceptions of the accused and then to ask whether those perceptions were objectively reasonable in the circumstances: Cinous, at para. 94.

[28] This simultaneously subjective and objective nature of the test, was described in Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396, at p. 404:

Subsection (2) of s. 34 places in issue the accused’s state of mind at the time he caused death. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception. [Emphasis added; underlining in original deleted.]

The Requirements for s. 35 Self-Defence

[29] This self-defence provision applies, where the accused is the aggressor or has provoked the assault may use force, if:

a) the accused did not initially endeavour to cause death or grievous bodily harm before it was necessary to preserve himself from death or grievous bodily harm;

b) the accused was, after his assault or threat, under a reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has initially assaulted or provoked;

c) the accused had reasonable grounds to believe, that the force used was necessary in order to preserve himself from death or grievous bodily harm; and

d) the accused must have “declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.”

The Requirements for s. 37 Self-Defence

[30] There are three requirements for this self-defence provision to apply:

a) the accused must be defending himself from an assault;

b) it must be necessary to use force to prevent the assault or the repetition of it; and

c) the force used must be proportionate to the assault or repetition of it.

The Requirements for Provocation

[31] In R. v. Pappas, 2013 SCC 56, [2013] 3 SCR 452 the issue was provocation and whether provocation should be left to the jury. The air of reality test application to provocation was described as follows:

[21] As discussed in the companion case R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, before leaving the defence to the jury, the trial judge must find that there is an air of reality on both the objective and subjective elements of the defence. The question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation. There must be an evidential foundation for both the objective and subjective elements of the defence, which s. 232(3) of the Criminal Code states are questions of fact.

[32] The elements of the defence of provocation were described by this Court in Tran.

[33] First, there is a two-fold objective element: “. . . (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control”: Tran, at para. 25.

[34] Second, there is a two-fold subjective element: “. . . (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool”: Tran, at para. 36.

[32] In Pappas, the issue was whether there was some evidence of the objective elements of provocation. All relevant evidence as to whether the act or insult would cause an ordinary person, in those circumstances, must be considered to determine whether there is evidence that a properly instructed jury acting reasonably might determine the objective element of provocation had been met:

[39] As the appellant emphasizes in his submissions, “the history and background of the relationship between the victim and the accused is relevant and pertinent to the ‘ordinary person’ test”: Thibert, at para. 17. Indeed, all contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: Thibert, at para. 18.

[40] However, the consideration of background circumstances that contribute to the significance that an ordinary person would attribute to an act or insult does not change the fact that a certain threshold level of self-control is always expected of the “ordinary person”. …..

[44] The objective component asks whether the provoking act would cause an “ordinary person” to lose his self-control, having regard to all the relevant circumstances. Again, depending on the circumstances, where the accused precipitated the victim’s wrongful act or insult by aggressively confronting him or her, there may be no basis in the evidence for any doubt as to whether that act or insult would cause an ordinary person to lose self-control. The fact that the victim’s response to the accused’s confrontational conduct fell within a range of reasonably predictable reactions may suggest that an ordinary person would not have lost self-control, although it must be weighed together with all other relevant contextual factors.

[33] The objective element for provocation was succinctly put by Justice Doherty in R. v. Hill, 2015 ONCA 616:

The impact of the provocative act on the ordinary person must also be contextualized, meaning it must be considered in the context of the circumstances faced by the accused. The question is – would an ordinary person, placed in the circumstances of the accused, be deprived of the power of self-control? (para80)

The question for the jury in applying the ordinary person test is not whether the ordinary person would have done the same thing that the accused did, but whether the provocative conduct would be sufficient to cause an ordinary person to lose control to the degree that the ordinary person would form the necessary intention for murder under s. 229(a) and act on that intention. (para 94)

[34] The required subjective element for provocation was described in R. v. Tran, 2010 SCC 58, [2010] 3 SCR 350:

[36] Once it is established that the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to a consideration of the subjective element of the defence. The subjective element can also be usefully described as two-fold: (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool.

[37] The inquiry into whether the accused was in fact acting in response to the provocation focuses on the accused’s subjective perceptions of the circumstances, including what the accused believed, intended or knew. In other words, the accused must have killed because he was provoked and not because the provocation existed (R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265, at p. 277, citing Professor G. L. Williams in his Textbook of Criminal Law (1978), at p. 480).

[38] The requirement of suddenness was introduced into the defence as a way of distinguishing a response taken in vengeance from one that was provoked. Therefore, suddenness applies to both the act of provocation and the accused’s reaction to it. The wrongful act or insult must itself be sudden, in the sense that it “must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame” (R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443). Further, the intentional killing must have been committed by the accused “before there was time for his passion to cool”: s. 232(2) of the Criminal Code.

(emphasis added)

Position of the Parties

[35] In this case, the Defence seeks a jury instruction on s. 34(1); 34(2); 35, 37 & 232 of the Criminal Code.

[36] The Crown submits there is no air of reality to either self-defence (under any of the sections relied upon by the Defence) or provocation.

ANALYSIS

A General Discussion of the Evidence

[37] The Defence relies on the following central facts to suggest that self-defence and provocation should be put to the jury:

a) Mr. Tayongtong’s blood was found in the blood drops on the hallway floor, the light switch, the prescription drug package, the bathroom sink and shower area. Clearly, Mr. Tayongtong was bleeding on September 8, 2012;

b) the blue handled knife was found in Aicha Saludares' right hand; and

c) Mr. Tayongtong had injuries on September 19, 2012. It is possible, “at least to some extent”, that these were defensive wounds.

[38] At the heart of the Defence submission is that it is open for the jury to conclude Aicha struck "the first blow" with a knife. This inference, if it is open for the jury, might make available self-defence and provocation.

[39] In its factum, the Defence states:

From this evidence, a jury could infer the deceased assaulted the accused.

It cannot be denied an inference exists, that the deceased's assault against the accused was unprovoked.

[40] One fundamental factual error in the Defence factum was that Mr. Tayongtong's blood was found on the blue handled knife:

"the accused's blood was found on the knife - which would not have been there but for the fact he was 'actively bleeding".

[41] This statement is factually incorrect. CFS tested three blood stains on the knife and the results came back that it was Aicha Saludares' blood. The Defence cross-examined Ms. Matte who testified that the tip and cutting edge of the blue handled knife was not tested by CFS. This lack of testing does not translate into a factual determination that the accused's blood was on the blue handled knife as the Defence would have this court accept. In my view, that would be speculation.

[42] In any event, it would be further speculation, even if there was blood or a possibility of Mr. Tayongtong's blood on the blue handled knife, to conclude that Aicha Saludares used the knife (or any knife) to launch the first attack on Mr. Tayongtong or even to threaten Mr. Tayongtong with a knife. There would be no evidence as to when or how this blood was deposited on the knife. It bears remembering, that the overwhelming evidence was that the blue handled knife was not at the location it was found in Aicha Saludares' hand when she died. The blue handled knife was balanced on its edge, lightly in some fingers of Aicha Saludares. More importantly, there is no forensic evidence or any evidence to the contrary. Det. Hofstetter did not agree to any suggestion that the blue handled knife had been in Aicha Saludares' hand during the knife wounds she suffered.

[43] I conclude that there is no reasonable inference available to the jury on the evidence to conclude Aicha Saludares first attacked or threatened Mr. Tayongtong with a knife, any knife.

Self-Defence S.34(1)

[44] In my view, a properly instructed jury, acting reasonably, could not conclude Mr. Tayongtong is not guilty or have a reasonable doubt on the basis of self-defence under this provision.

[45] First, for the reasons set out above, the Defence position that Aicha Saludares first assaulted Mr. Tayongtong is nothing but mere speculation. It is not an inference that is open for the jury to draw on the evidence. Without any evidence for the jury to possibly draw an inference that Aicha Saludares first assaulted Mr. Tayongtong, this defence must necessarily fail.

[46] Secondly, s. 34(1) only applies where the accused did not provoke the assault by the victim. See R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686. The fact Mr. Tayongtong had wounds, even defensive wounds, does not provide any evidence, one way or another, as to whether Aicha Saludares was or was not provoked to assault Mr. Tayongtong (if she assaulted him at all). There is no evidence upon which a jury could assess this essential element.

[47] Next, it would defy all logic that Mr. Tayongtong did not use more force than necessary to defend himself. There were 138 knife wounds. Many of the knife wounds spattered blood in a 360 degree circle around Aicha Saludares while on the floor of the kitchen. There is simply no evidence for the jury to draw the inference that Mr. Tayongtong used no more force than was necessary to defend himself. Without some evidence for the jury to possibly conclude that Mr. Tayongtong's force was no more force " than is necessary to enable him to defend himself", this defence is not available.

[48] I am not persuaded that a properly instructed jury, acting reasonably, could find Mr. Tayongtong not guilty or have reasonable doubt as to the application of this self-defence provision on the evidence adduced at trial.

Self-Defence s. 34(2)

[49] Even if the jury could infer from Mr. Tayongtong's wounds of September 19, 2012 that they were defensive and were incurred during an assault on September 8, 2012, it is not open to the jury to infer that the essential elements of this defence apply where:

a) there is no evidence at all as to events leading to the wounds inflicted on Aicha Saludares;

b) there is no evidence at all whether Mr. Tayongtong reasonably apprehended a risk of death before knifing Aicha Saludares; and

c) there is no evidence at all whether Mr. Tayongtong reasonably believed that he had no choice in defending himself but to kill Aicha Saludares.

[50] I am not persuaded that a properly instructed jury, acting reasonably, could find Mr. Tayongtong not guilty or have reasonable doubt as to the application of this section of the self-defence provisions on the evidence adduced at trial.

Self Defence s. 35

[51] Once again, the events leading to the knifing of Aicha Saludares are not in evidence and a reasonable inference as to what had occurred is not available for the jury to decide what happened.

[52] However, assuming that Mr. Tayongtong was the initial aggressor, there is no air of reality to the application of this defence. I point only to two of the essential elements as being bereft of any evidence from which the properly instructed jury, acting reasonably could find that this defence applied or that there was a reasonable doubt that this defence applied:

a) there is no evidence at all that Mr. Tayongtong at any time was under a reasonable apprehension of death or grievous bodily harm from Aicha Saludares; and

b) there is no evidence at all that Mr. Tayongtong believed it was necessary for him to cause death or grievous bodily harm to preserve himself; and

c) there is no evidence at all that Mr. Tayongtong retreated as far as it was reasonably possible before it was necessary for him to inflict death or grievous bodily harm.

[53] Leaving this defence, like the other defences, would require the jury to embark upon speculation to assess and make a determination on these essential elements of this defence.

[54] I am not persuaded that a properly instructed jury, acting reasonably, could find Mr. Tayongtong not guilty or have reasonable doubt as to the application of this section of the self-defence provisions on the evidence adduced at trial.

Self Defence s. 37

[55] Without repeating the above, it is entirely speculation that Aicha Saludares first assaulted Mr. Tayongtong requiring him to defend himself.

[56] Given this conclusion, there is no basis for the jury to assess or determine the essential elements of necessity or proportionality required for the application of self-defence under s. 37.

[57] There is no evidence of Mr. Tayongtong's belief that it was necessary for him to assault Aicha Saludares or that his responsive assault was proportionate in the circumstances. The jury would, by necessity, be required to embark upon a purely speculative exercise of trying to ascertain exactly what happened prior to Aicha Saludares' death.

[58] I am not persuaded that a properly instructed jury, acting reasonably, could find Mr. Tayongtong not guilty or have reasonable doubt as to the application of this section of the self-defence provisions on the evidence adduced at trial.

Provocation s. 232

[59] Let me deal with the objective elements of provocation (wrongful act and sufficient to cause a loss of control). Without any evidence as to what, if any, wrongful act was allegedly done by Aicha Saludares, there is no basis for the jury to determine whether, objectively to a reasonable person, the wrongful act was sufficient to cause a reasonable person a loss of control.

[60] Let me turn to the subjective elements of provocation (acted in response to the wrongful act and suddenly before there was time to cool off). There is no evidence whether Mr. Tayongtong responded to the wrongful act (if there was one) or whether his response was before he had time to cool off.

[61] There is simply a vacuum on these issues which cannot be filled by speculation.

[62] I am not persuaded that a properly instructed jury, acting reasonably, could find Mr. Tayongtong not guilty or have reasonable doubt as to the application of provocation on the evidence adduced at trial.

CONCLUSION

[63] The Defence request that self-defence and provocation be put to the jury is denied.

Ricchetti, J.

Date: October 17, 2017

CITATION: R. v. Tayongtong, 2017 ONSC 6192

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

DATE: 20171017

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NELSON TAYONGTONG

SELF DEFENCE/PROVOCATION RULING

Ricchetti J.

Released: October 17, 2017