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 # 3: DEFENCE APPLICATION TO EXCLUDE CERTAIN ITEMS OF EVIDENCE ON THE BASIS THAT THEIR PREJUDICIAL EFFECT WOULD OUTWEIGH THEIR PROBATIVE VALUE

K. van Rensburg J.

[1] This is my ruling originally released on May 7, 2013, with respect to the defence application to exclude certain items of evidence on the basis that their prejudicial effect outweighs their probative value.

[2] The evidence in question is relevant and presumptively admissible. The onus is on the defence to establish that in each case the prejudice to the accused by admitting the piece of evidence would outweigh its probative value. As Justice Watt notes in his Manual of Criminal Evidence (Toronto: Carswell, 2012), the common law discretion to exclude evidence on this basis requires an assessment of the effect of the reception of the evidence on the fairness of the trial (at p. 40).

[3] In making my decision I am guided by the relevant principles set out by in R. v. P.(R.), [1990] O.J. No. 3418 at paras. 38 to 40. As Doherty J. noted in that case, prejudice can refer to several things, including the danger that, despite instructions to the contrary, the jury will use the evidence in question for the wrong reasons (in that case the question was the potential for propensity reasoning by the jury when considering the deceased’s ante mortem statements about the accused). In such a case the court must consider the ability of the jury to properly follow directions as to the use of the evidence.

[4] Doherty J. also observed that the objective is no longer to root out the most extreme cases where prejudicial potential is “grave” and probative value is “trifling.” The onus however is on the accused to demonstrate that the balance favours exclusion of otherwise admissible evidence.

[5] Doherty J. also referred to the fact that the court may edit evidence as an alternative to exclusion in order to reduce the prejudicial effect: R. v. P.(R.), at para. 42.

[6] Other cases confirm that prejudicial effect may include evidence that is unduly repetitive and evidence that may provoke or inflame the jury against the accused: R. v. Kinkead, [1999] O.J. No. 1498 (S.C.); R. v. Qahwash, [2011] O.J. No. 6515 (S.C.); R. v. Hindessa, [2009] O.J. No. 3838 (S.C.).

[7] Crown counsel put together an application record identifying the particular photos that they intend to lead during the Crown’s case, as well as other information respecting the disputed evidence. The application record also contains the preliminary hearing reasons for committal of McLeod J., and the evidence of the pathologist Dr. Kristopher Cunningham, from the preliminary hearing.

[8] The admissibility of some of the items was resolved during argument on the application. There are two photos showing Tiffany Gayle’s body as she was found at the scene, in which her breasts are fully or partly visible. The Crown has agreed to black out Tiffany’s breasts, which will not deprive the photos of their evidentiary value, but will be more respectful of her dignity. The autopsy photo of Tiffany’s face will be altered to black out her eyes, which appear slightly open in the photo.

[9] Crown counsel confirmed that they will not seek to introduce evidence of a healing rib fracture identified during the autopsy.

[10] With respect to the other autopsy photos, there were three particularly graphic photos. The two full length photos of Tiffany’s body which has been opened up during the autopsy are the last two photos at Tab 5. According to the Crown, these photos show the nature and extent of her injuries, and are evidence as to where on her body she was struck and the degree of force that was used. Crown counsel has agreed to ask the pathologist to give his evidence with respect to what the photos would depict by reference to a drawing or series of drawings, rather than by reference to these photos. This ruling will be revisited if necessary, to be addressed through a voir dire, should it appear during the course of his testimony at trial, that the pathologist considers it necessary to refer to the photos.

[11] I will now deal with the remaining disputed items in turn.

[12] First, there are two autopsy photos showing an injury to Tiffany Gayle’s head. Defence counsel contends that the clinical picture of the wound after the area has been shaved is graphic and disturbing, and that it is only necessary for the first photo to be shown. I disagree. Although both photos show the same wound, the second photo is a close up of the wound, and permits an observation of its size in relation to the “L-square” that is placed beside it. The second photo has probative value and it is not in my view so graphic and disturbing as to warrant exclusion.

[13] Next, there are two photos showing fat extrusions on Tiffany’s legs. The defence asserts that only one photo is necessary. Crown counsel has selected two out of a number of photos. They show the source of the biological material found on the walls outside the bathroom, which is relevant to the degree of force used in Tiffany’s death and the location of the beating. What the photos depict may be unsettling, however that is the nature of the evidence in this case. I would not exclude either photo, as they are not duplicative. One provides a close up of a fat extrusion on one leg, and the other shows its presence on both legs of the deceased.

[14] The other photos in question are of Tiffany’s body during the dissection that occurred in the autopsy process. The third last photo at Tab 5 will be admitted at trial. This is a photo that shows an avulsion pocket under the skin, that was exposed during the autopsy procedure. It will illustrate Dr. Cunningham’s evidence on this point, which is relevant to the degree of force used in striking Tiffany, and accordingly the issue of intent. I agree that the photo is necessary, and that it would be difficult, if not impossible, to depict this observation on a diagram. This photo, while graphic, is a close-up of an incision and, by contrast to the remaining two photos, which I have already addressed, does not show the entire body of the deceased as it was opened up during the autopsy.

[15] Next there was a partial fingerprint located by Constable Hofstetter at the scene on the edge of the bathtub. Although the officer was unable to positively identify that impression as being from Mr. Gayle, he was not able to eliminate Mr. Gayle as the source. He was however able to eliminate Elizabeth Gayle and Kashra Charles. Crown counsel will rely on this evidence as a piece of circumstantial evidence against Mr. Gayle.

[16] Defence counsel assert that the evidence does not implicate Mr. Gayle directly, and is therefore of negligible probative value; there is a danger that the jury will give it too much significance and interpret this evidence as more determinative and compelling than it really is.

[17] There is no rule precluding the admission of partial fingerprints in evidence at a trial. A partial fingerprint, like a partial DNA profile, is circumstantial evidence that can be considered by the jury together with the other evidence at trial.

[18] With respect to this piece of evidence, I agree with the reasoning of Justice McLeod at the preliminary inquiry. With the exclusion of Mrs. Gayle and Kashra as the source of the fingerprint, it is open to the jury to look at who lives in the residence, who must be excluded as the donor of the print and to conclude that Mr. Gayle was in the bathroom and left his fingerprint in blood. I note as well that this evidence is exculpatory of Mrs. Gayle, and it would be unfair to her defence if it were excluded from the trial. Whatever weaknesses and limitations there are with respect to this evidence are capable of being explored by Mr. Gayle’s counsel in their cross-examination of Constable Hofstetter.

[19] Next, there is a Nuk pacifier package with handwriting appearing to be by Fedrick Gayle and a date of October 30, 2009. Crown counsel argues that the message on the package is evidence of an antagonistic and callous attitude toward Tiffany by her father, which is circumstantial evidence of animus, and therefore relevant to intention. Counsel for Mr. Gayle asserts that this is evidence of prior discreditable conduct. The message is equivocal at best, and calls out for an explanation. It may be that this was only innocent teasing by Mr. Gayle.

[20] I find this piece of evidence, which has a date of October 30, 2009, more than seven months before Tiffany’s death, to be of little probative value, when compared with the potential prejudice if it goes in without Mr. Gayle’s explanation. I will not permit the Nuk pacifier to be entered into evidence in the Crown’s case; however it may be put to Mr. Gayle in cross-examination by the Crown or Mrs. Gayle’s counsel, or for that matter by his own counsel, should he testify at trial.

[21] Finally, there is the baseball bat that was located at the Gayles’ former rental property. Crown counsel seeks to admit the bat as a possible weapon used in Tiffany’s killing. This is a piece of evidence that could confirm and corroborate Mrs. Gayle’s account. Counsel for Mrs. Gayle agrees that the bat should go in. Its admission in evidence is opposed by Mr. Gayle.

[22] The argument has to do with what was described as problems concerning the “provenance” of the bat. The evidence is that Tiffany Gayle was killed by blunt force trauma with one or more rigid elongated instruments. Mrs. Gayle referred to Mr. Gayle using a bat in her statement, which I have ruled admissible for and against Mrs. Gayle in this trial. At the time she said she didn’t know where the bat was. In March 2011, through her counsel and in consideration of her consent release on the murder charge, she provided information that she believed the bat was at a rental property the couple formerly owned at 8 Northwood Drive in Brampton. She said that Mr. Gayle had gone out and she guessed it was there because of how long he was gone. She described the bat as blue, with a white handle. Her counsel attended at the property and observed several bats on a shelf in an aluminum shed. On March 19, Officers Heyes and Walker attended and found a blue bat with a black handle in a different shed on the property. The owner who bought the property in the fall of 2010 said he had found a baseball bat in the wooden shed attached to the house, and had kept it for his children to play with. The people who rented the house at the time denied ownership of the bat.

[23] There is no DNA evidence linking the bat to the crime. The chemical makeup of the bat, which is a 7000 series aluminum alloy is consistent with scuff marks at the scene.

[24] The concern is that Mr. Gayle’s counsel may never have the opportunity to cross-examine Mrs. Gayle about the discrepancies between what she told the police about where the bat might be and earlier points in her interview when she had not said anything about Fedrick Gayle leaving the house. Mr. Gayle’s counsel asserts further that it would be prejudicial and dangerous to hold up the bat and to invite the jury to conclude that this is the murder weapon, where the evidence linking this particular bat to the killing is equivocal.

[25] Defence counsel says this is like R. v. Aubin (1994), 1994 5884 (QC CA), 94 C.C.C. (3d) 89 (Que. C.A.). In that case, there was no nexus in the evidence between the gun found on the accused at the time of his arrest and the weapon used to kill the deceased; there was no evidence as to the type of gun that had been used. The gun ought to have been excluded because of the risk of propensity reasoning. In this case, there is evidence to suggest that a baseball bat was used in Tiffany’s killing, blue scuff marks at the scene consistent with the bat in question and Mrs. Gayle’s information as to where the murder weapon might be found. This case is more like two cases referred to by Crown counsel: R. v. Donzell Young, a 1991 unreported decision of Moldaver J., and R. v. Mullings, a 2007 unreported decision of Belleghem J. In each case the trial judge ruled admissible evidence that the accused had been seen with a gun shortly before the offence, although there was a danger of propensity reasoning through the admission of such evidence. Both judges adopted and applied the reasoning of Mr. Justice McIntyre, then of the British Columbia Court of Appeal in R. v. Boyko, 28 C.C.C. (2d) 193 at page 200, concluding that where it was clear that the killing had been accomplished with a particular weapon, it was relevant to show that the accused a short time before the killing was in possession of such a weapon. The fact that there was evidence about other weapons, such that it could not be said for certain that this was the weapon, went to weight and not to admissibility.

[26] In this case there is evidence to link the bat that was found at the Gayles’ former property to Tiffany’s killing. Concerns about how the bat came to be in the possession of the police – as to the links in the chain between the information provided by Mrs. Gayle and the discovery of the bat, and concerns about Mrs. Gayle’s credibility and motive to fabricate, as well as the absence of DNA and the fact that any number of bats could have the same chemical composition, would go to the weight and not to the admissibility of this 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 #3: Defence Application to Exclude Certain Items of Evidence on the Basis that their Prejudicial Effect Would Outweigh their Probative Value

K. van Rensburg J.

Released: August 16, 2013