ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-1730
DATE: 20130816

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ELIZABETH GAYLE and FEDRICK GAYLE

Defendants

B. McGuire and C. Coughlin,

for the Crown

M. MacGregor and D. McLeod,

for the Defendant Elizabeth Gayle

S. Bernstein and S. Pennypacker,

for the Defendant Fedrick Gayle

pretrial Ruling #2: Application by Fedrick Gayle to Exclude Statements of Elizabeth Gayle or for Severance

K. van Rensburg J.:

[1] Elizabeth Gayle and Fedrick Gayle are jointly charged with the first degree murder of Tiffany Gayle.

[2] This is an application by Fedrick Gayle advanced during pretrial motions on April 21 and 22, 2013, to exclude certain statements to the police by his co-accused Elizabeth Gayle. This was the primary relief sought by Mr. Gayle. Although the request for severance initially was not pursued very vigorously, by the end of Ms Pennypacker’s argument, she advised that this is the second alternative sought by Mr. Gayle. These are my reasons for decision, given orally on May 7, 2013, dismissing the application and directing the editing of the statements.

[3] The statements in question were made by Elizabeth Gayle June 12, 15 and 16, 2010. The Crown does not intend to lead the June 15th statement. There is also a statement given by Mrs. Gayle on March 11, 2011 through counsel, indicating the possible location of the bat used to kill Tiffany Gayle, which Crown counsel agrees will be edited to excise the part where she states that Fedrick used it. The introduction of this statement is not opposed by Fedrick Gayle in the event that the bat is admissible evidence at trial. This is the subject of another pre-trial ruling.

[4] Elizabeth Gayle consents to the admission of the statements and that they were voluntary. She is opposed to editing of the statements and she takes no position on the request for severance.

[5] The Crown wishes to have the opportunity to put Mrs. Gayle’s statements in as evidence in their case, and not just to use the statements in cross-examination should she testify. Ms Pennypacker indicated that Mr. Gayle would not have brought this application if the Crown was only intending to use the statement in cross-examination should Mrs. Gayle testify at trial.

[6] The statements of course are not evidence against Mr. Gayle. The law is clear that the statement of an accused is not admissible against a co-accused: R. v. C.(B.), 1993 8564 (ON CA), [1993] O.J. No. 654 (C.A.), at para. 15, and that the jury would need to be instructed in very clear terms as to the use that could be made of Mrs. Gayle’s statement. Counsel for Mr. Gayle is very concerned that the jury would use the statements as evidence against Mr. Gayle, even if instructed not to do so.

[7] The statements were not played in court for the purpose of the application, although extensive reference was made to the transcripts.

[8] Briefly, Mrs. Gayle gave an account that was not inculpatory of herself or her own involvement in Tiffany’s death. In the June 16 statement however she said that Fedrick had killed Tiffany, that it was an accident and that he didn’t mean to do it. Initially Mrs. Gayle had been in the garage with Tiffany disciplining her by talking to her. Fedrick came in and struck Tiffany with a baseball bat. Mrs. Gayle left to go upstairs to bed. She came to the basement when Fedrick was there with Tiffany. She saw him strike Tiffany again three times before she left the basement to go upstairs.

[9] Mrs. Gayle denied that she had struck Tiffany or that she had participated in a clean-up. She admitted she had hit Tiffany in the past, but denied she did so that night.

[10] Crown counsel asserts that the statements provide highly probative evidence against Elizabeth Gayle, specifically:

• her admission to being present during a deadly assault on her step-daughter;

• her admission that she did nothing to prevent her step-daughter’s death; Her denials of using a weapon which can be contradicted by forensic evidence; and

• her denials of being involved in a clean-up in the face of forensic evidence to the contrary.

[11] The Crown argues that to exclude the evidence would deprive the prosecution of this important evidence against Elizabeth Gayle.

[12] Crown counsel asserts that there are many inconsistencies in Mrs. Gayle’s statement that could support the inference that she was more involved in Tiffany’s death than she admitted. The statement could be used by the jury to assess her account and its credibility, and together with other evidence in the case to find her guilty of first degree murder. If the jury believed that Mr. Gayle killed Tiffany, Mrs. Gayle’s account could support a finding that she aided and abetted her husband. Finally, the account provided by Mrs. Gayle would provide evidence for a conviction for manslaughter.

[13] Defence counsel assert that the statement should be excluded on the basis that its prejudicial effect to Mr. Gayle’s defence outweighs its probative value, which admittedly would only be proof against Mrs. Gayle. The concern is that Mrs. Gayle’s defence will go before the jury whether or not she testifies, and if only the statement goes in they will not have the opportunity to cross-examine her, including to explore her possible motive for implicating Fedrick (to save herself from jail).

[14] It is asserted that there is a significant danger that the jury, despite being cautioned, will use the statement as evidence against Fedrick Gayle, and because of what it contains it could be the most powerful evidence against Mr. Gayle in terms of placing the weapon in his hands. Counsel argues that the statements have little probative value on the questions of Mrs. Gayle being present during a deadly assault, or that she did nothing to prevent the assault when she had a duty to do so, since she did not admit seeing blood in the basement and contended that the killing was an accident, and she said she didn’t know about the ongoing assault. It is asserted that the statement has little probative value on these two points as her admission to being present during the assault is mitigated by her statement she didn’t know it would cause death. There is lots of other evidence to implicate Mrs. Gayle, including blood spatter on her clothing and the bloody footprints associated to her.

[15] Crown counsel asserts that there is no precedent for an accused to seek to exclude the statement of his co-accused where the two are to be tried jointly. That may be the case however there are many examples of trial judges directing that statements be edited to remove portions that might be unduly prejudicial to a co-accused. Extensive editing, for example, took place in R. v. Olah, 1997 3023 (ON CA), [1997] O.J. No. 1579 (C.A.). Editing also took place in R. v. Figliola, 2011 ONCA 457, [2011] O.J. No. 2777 (C.A.), however that led to difficulties when the editing decision was reversed in the course of the trial.

[16] Crown counsel is opposed to extensive editing that would go to the narrative of events. The Crown agrees to edit out any gratuitous comments regarding Mr. Gayle’s character as well as any questions and answers where Mr. Gayle’s right to remain silent is put in question, referring to the many times when Mrs. Gayle says that Fedrick should tell the police himself about what happened.

[17] It is acknowledged that it is impossible to edit the statement to delete references to what Mr. Gayle is asserted to have done. The references to Mr. Gayle’s involvement are intertwined in Mrs. Gayle’s account, and the removal of his name (as occurred in Figliola) would make no sense in the context of this case, as it would be obvious from the circumstances that the references were to Mr. Gayle even if his name were deleted. The deletion of all references to Mr. Gayle would render Mrs. Gayle’s statement meaningless. The option of a “ruthless editing” of Mrs. Gayle’s statement, to use Ms Pennypacker’s expression, is simply not viable in this case.

[18] I have concluded that the statement cannot be excluded from evidence in this trial. It is relevant to the Crown’s case against Mrs. Gayle; it is an element of the Crown’s proof, and it is not an answer to say that there may be other evidence the Crown may rely upon to prove the charge against Mrs. Gayle. There is no argument for exclusion by Mrs. Gayle, and no assertion that its prejudicial effect outweighs its probative value for the issues in respect of which it would be admissible at trial. As Mr. MacGregor pointed out, the statement contains exculpatory aspects, and is evidence both against and for Mrs. Gayle: R. v. Simmons (1955), 1955 164 (ON CA), 110 C.C.C. 309 (Ont. C.A.).

[19] There is no question that Elizabeth Gayle’s statement in this trial may be prejudicial to Mr. Gayle, as it may be misused by the jury as evidence against him. The question is whether that prejudice can be minimized and managed through appropriate instructions to the jury, and other measures at trial, or whether severance is necessary.

[20] Section 591(3) of the Criminal Code permits severance when the court is satisfied the interests of justice so require. The onus is on the accused seeking severance to satisfy the trial judge of the need for severance on a balance of probabilities.

[21] The leading case continues to be R. v. Crawford and Creighton, 1995 138 (SCC), [1995] 1 S.C.R. 858 where at pages 880 to 881 Sopinka J. set out the guiding principles which are (1) the presumption in favour of joint trials which is based on the strong policy reasons, especially in the case of “cut-throat” defence to avoid inconsistent verdicts and to have the full truth about an incident emerge on one occasion; and (2) the discretion of the trial judge to order separate trials, only if it is established that a joint trial will work an injustice to the accused. As Sopinka J. noted, “the mere fact that a co-accused is waging a ‘cut-throat’ defence is not in itself sufficient”.

[22] It is fundamental to the continued existence of jury trials in this country and the preservation of the right to a jury trial in s. 11(f) of the Charter that juries are presumed to be able to follow judicial instructions respecting the law and evidence, even where such matters are complex: R. v. Corbett (1988), 1988 80 (SCC), 41 C.C.C. (3d) 385 (S.C.C.) at pp. 400-401, and R. v. Olah and Ruston, 1997 3023 (ON CA), [1997] O.J. No. 1579 (C.A.) at para. 48.

[23] This is not a case where both accused seek a severance. Accordingly, the right of Elizabeth Gayle to make full answer and defence, must also be factored into the balance, together with the public interest in favour of joint trials in the circumstances: R. v. Torbiak and Gillis, 1988 7064 (ON CA), 40 C.C.C. (3d) 193 (Ont. C.A.), at para. 20.

[24] I have considered the numerous authorities referred to in argument. I note that most of the authorities were Court of Appeal decisions in which the court refused to interfere with the decision of the trial or pre-trial judge in refusing severance, which was characterized as a matter of discretion.

[25] Although the cases set out general principles to guide the exercise of discretion, each case must be considered on its own particular facts – considering the particular prejudice alleged to the co-accused (in this case the statements of an accused implicating her co-accused), the role of that evidence in the case and the apparent strength of the evidence that would be admissible against the co-accused.

[26] There are several examples where severance was refused where the prejudice was alleged to result from a co-accused’s statement which would not be admissible evidence against the accused. In R. v. Olah and Ruston, the refusal of severance was upheld on appeal where Olah’s statement, which was described by the trial judge as “graphic, detailed and compelling” had been edited to remove prejudicial comments about Ruston that were not necessary to the narrative. Olah did not testify at trial. In R. v. Evans, [2002] B.C.J. No. 1231 (B.C.C.A.) the refusal of severance was upheld on appeal where the statement of one accused graphically implicated the other in the killing and the statement contained a graphic re-enactment of the offence. In R. v. Court, 1995 1741 (ON CA), [1995] O.J. No. 1368 (C.A.) severance was refused where intercepted communications were played at trial in which one accused implicated the other; and where he also gave statements to the police implicating the co-accused. This evidence was dealt with by repeated strong instructions to the jury that they not use the statements as evidence for or against the co-accused. In R. v. McLeod (1983), 1983 3605 (ON CA), 6 C.C.C. (3d) 29 (Ont. C.A.), severance was refused in a case where the statements of the co-accused implicated one another. The court confirmed that editing the statements to remove the names of the co-accused would have marred the flow of language and aroused the suspicion and speculation of the jury.

[27] In each of these cases, the position of the co-accused was before the jury in the form of his statement, without any guarantee that the co-accused would testify and therefore be subject to cross-examination. This factor alone was not sufficient to justify severance.

[28] The cases referred to by counsel suggest that severance may be warranted where the evidence against one accused is marginal and there is an imbalance in the evidence. See for example R. v. Malik, 2007 ONCA 120, [2007] O.J. No. 646 (at paras. 17 and 18). This is why the Court of Appeal decided severance should have been ordered in R. v. Figliola, 2011 ONCA 457, [2011] O.J. No. 2777 (C.A.).

[29] This is not a case where the evidence against Mr. Gayle is slight when compared to the evidence against Mrs. Gayle. As Ms Pennypacker observed, but for Mrs. Gayle’s statement, the evidence in the case is fairly evenly distributed between the two accused. She described the statement as “the only thing that tips the balance between the accused”.

[30] R. v. Guimond, 1979 204 (SCC), [1979] 1 S.C.R. 960 is an example of a case where the court concluded that separate trials were required where an appeal from conviction had been allowed because a statement admissible against only one accused had been improperly admitted against both accused. The court’s observation at p. 978 was echoed by the Court of Appeal in Figliola. The salient factor was that the evidence against the accused who gave a statement implicating a co-accused was substantially stronger than the evidence against the co-accused. In such cases there is a considerable risk that the jury might misuse the statement to fill in gaps in the Crown’s case against the co-accused.

[31] I have concluded that the interests of justice as they appear at this stage, do not require a severance of the trials of Elizabeth Gayle and Fedrick Gayle. The application by Fedrick Gayle is dismissed. I intend to instruct the jury as to the use that they can and cannot make of Mrs. Gayle’s statement. It is my intention to provide a mid-trial instruction to the jury when the video recordings of the interviews are played. I would ask counsel to provide me with their views as to the timing and content of such mid-trial instruction or instructions.

[32] I also intend in my final instructions to the jury to deal with the case against each accused separately based on the evidence admissible against each. This was an approach that was noted by the Court of Appeal with approval in R. v. Welsh, 2013 ONCA 190, [2013] O.J. No. 1462 (C.A.), where the trial judge’s refusal of a severance application that was renewed at several points in the trial was upheld. See paragraphs 176 and 177 in particular where the court also noted that Crown counsel in his closing address adopted the same format of dealing with each accused separately and reiterating the limiting instruction.

[33] Finally, Crown counsel shall also provide defence counsel with the video recordings edited to remove any questions and answers that call into question Mr. Gayle’s right to remain silent, as well as any gratuitous comments. If there is any question about the editing, this shall be addressed before me before the recordings are played in evidence.

K. van Rensburg J.

Released: August 16, 2013

COURT FILE NO.: 12-1730
DATE: 20130816

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ELIZABETH GAYLE AND FEDRICK GAYLE

PRETRIAL Ruling #2: Application by Fedrick Gayle to Exclude Statements of Elizabeth Gayle or for Severance

K. van Rensburg J.

Released: August 16, 2013