Ontario

Superior Court of Justice

Court File No.: 12-1730

Date: 20130909

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 # 5: ADMISSIBILITY OF HEARSAY OF TIFFANY GAYLE AND PRIOR DISCREDITABLE CONDUCT

K. van Rensburg J.:

Introduction

[1] In this first degree murder trial, the Crown applied to admit certain hearsay statements of the deceased Tiffany Gayle, and to admit parts of the hearsay evidence as well as certain other evidence that could be characterized as prior discreditable conduct. There was also a defence application to exclude certain evidence, in particular the hearsay evidence of Samantha Gayle, on the basis that its prejudicial effect would outweigh its probative value.

[2] On May 15, 2013, I provided my ruling on the applications with brief reasons and directions. These are my written reasons for decision on the applications.

[3] The Crown proposed to lead the following evidence, the admissibility of which was at issue:

• certain statements made by Tiffany to her school friend Royena Smeikoe, including evidence that Elizabeth Gayle had struck Tiffany;

• certain statements made by Tiffany to her sister Samantha Gayle;

• text messages from Tiffany to her mother Sherine Stephenson-Taylor, sent from Royena Smeikoe’s cell phone;

• writings alleged to have been authored by Tiffany that were found in the drawers of a dresser in the Gayles’ bedroom; and

• evidence of Kashra Charles, Elizabeth Gayle’s daughter, as to discipline in the Gayle home, including hearing Tiffany being struck on prior occasions.

[4] As part of the prior discreditable conduct application, the Crown proposed to lead the evidence of Fedrick Gayle Jr. as to discipline in the Gayle home, including his own and Tiffany’s corporal punishment. Fedrick Gayle Jr. was unavailable to testify at trial and in Pretrial Ruling #6, I determined that his video-recorded police interviews in their entirety were inadmissible hearsay; as such it was unnecessary to address the prior discreditable conduct application in connection with such evidence.

Positions of the Parties

[5] Crown counsel asserted that parts of the evidence as to what Tiffany said to others, are not hearsay and should be admitted as relevant and material evidence of Tiffany’s state of mind. Other parts of the evidence fall within the “state of mind” exception to the hearsay rule, or their admission can be justified by a principled hearsay analysis. Necessity is present because the declarant is deceased, and the statements meet the test for threshold reliability.

[6] According to Crown counsel, the relevance of this evidence is with respect to the relationship between the principal parties in this case. As Crown counsel asserted in their factum, evidence of how Tiffany was feeling and her relationship with the accused may assist in proving the identity of her killer and the state of mind that accompanied the killing. Evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead the jury to conclude that an accused bore the deceased some animus or had a motive to kill her.

[7] With respect to the evidence of discipline in the home, and in particular that Tiffany had been struck on earlier occasions, while this might reveal prior discreditable conduct, Crown counsel argued that it should be admitted in order to provide the necessary context for what occurred, and as evidence of the relationship between the protagonists in this matter, which is relevant, material and not unduly prejudicial.

[8] Fedrick Gayle took no position on the admission of hearsay evidence through Royena Smeikoe, but opposed the admission of the hearsay evidence of Samantha Gayle. With respect to the hearsay evidence, the position of Elizabeth Gayle was the opposite; that Samantha Gayle’s hearsay evidence should be admitted and that Royena Smeikoe’s should not.

[9] Fedrick Gayle opposed admission of the text messages, as well as all of the writings, copies of which were marked as Exhibits 9, 11, 12, 13 and 14 on the voir dire. Elizabeth Gayle argued that, of all the writings, perhaps only Exhibit 14 should be admitted.

[10] Both defendants asserted that Kashra’s evidence that she heard Tiffany being struck on earlier occasions, should be excluded as prior discreditable conduct and that evidence of strict discipline in the home should be excluded as its prejudicial effect would outweigh its probative value.

[11] The evidence on the voir dire for these applications consisted of the exhibits, the transcripts of the police interviews of Royena Smeikoe and Samantha Gayle, as well as Royena’s testimony at the preliminary hearing.

[12] I was provided with a summary of the specific hearsay utterances from each of these witnesses that the Crown sought to introduce. When I delivered my ruling orally, I indicated in a mark-up of the summary what was admissible, and the basis for the admission of each utterance so that the Crown would be assisted in the scope of their examination of these witnesses at trial, and so that consideration might be given to appropriate jury instructions with respect to the evidence of each witness.

[13] There were other instances during the course of the trial where rulings were made with respect to the admissibility of other hearsay evidence, and I do not intend to expand upon the reasons I gave orally, which were governed by the same principles as are set out in this decision.

Relevant Legal Principles

[14] The Ontario Court of Appeal’s decision in R v. Candir, 2009 ONCA 915, [2009] O.J. No. 5485 provides useful guidance for how the court should address the issues in these applications.

1. Step One – Determining Relevance

[15] The first step is to determine whether the evidence is relevant and material. As Watt J.A. noted at para. 51 of Candir, citing that court’s earlier decision R. v. Moo, 2009 ONCA 645, [2009] O.J. No. 3706 (C.A.), in a prosecution for a crime of domestic homicide, evidence of the relationship between the persons charged and the deceased may be relevant and material. He stated, at paras. 51 and 52:

Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person’s animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing.

Evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased [citations omitted].

[16] As Doherty J. noted in R. v. P.(R.), [1990] O.J. No. 3418 (H.C.J.), at paras. 10 to 15, utterances of the deceased that reflect her state of mind at the time of or just before her death, may be relevant to the question of motive and accordingly the identity of the killer. Such evidence may also assist in proving the accused’s animosity towards the victim.

[17] Watt J.A. also noted at para. 48 of Candir, that the threshold for relevance is not high, and that the exclusivity or cogency of the inferences that may be drawn from the item of evidence has no place in the inquiry into relevance. Threshold relevance cannot be an exacting standard, and to be logically relevant, the evidence does not have to firmly establish on any standard the truth or falsity of a fact in issue: R. v. Blackman, 2008 SCC 37, [2008] S.C.J. No. 38, at para. 30.

2. Step Two – Is the Evidence Hearsay?

[18] The next step is to determine whether the statement in question is hearsay. Hearsay is presumptively inadmissible, unless its admission is justified under a specific traditional exception to the hearsay rule, or the principled exception, requiring an evaluation of its necessity and reliability.

[19] In this case Crown counsel relies on certain statements as evidence of Tiffany’s state of mind, which they assert are either not hearsay or subject to the state of mind exception to the hearsay rule.

3. Step Three – Does a Traditional Hearsay Exception Apply?

[20] The “state of mind” exception permits the admission of hearsay evidence demonstrating the declarant’s state of mind, except where the statements are made under circumstances of suspicion: R. v. Humaid, 2006 12287 (ON CA), [2006] O.J. No. 1507 at para. 59. In R. v. P.(R.), at para. 16, Doherty J. suggested a distinction between statements as evidence of the state of mind of the deceased which are hearsay (explicit statements of the declarant’s state of mind) and statements that are not hearsay (statements that give rise to an inference about the declarant’s state of mind), and are admissible as circumstantial evidence of a state of mind. See also para. 56 of Candir.

[21] As Doherty J. also noted in R. v. P.(R.), at para. 25, an utterance received as evidence of a state of mind of the deceased “is… not admissible to establish that past acts or events referred to in the utterances occurred”. To the extent that the Crown relied on hearsay statements as evidence that certain things Tiffany referred to in fact happened, that is as evidence of the substance of what she said, and not simply what the statements might disclose about her feelings or emotions, it was necessary to establish their admission through the principled exception to the hearsay rule.

4. Step Four – Is the Hearsay Admissible under the Principled Exception to the Hearsay Rule?

[22] The principled exception to the hearsay rule requires that the court be satisfied that the evidence is necessary and meets the test for threshold reliability.

[23] Necessity means that the hearsay evidence is not available directly from the declarant. The element of necessity is established where the declarant is deceased: Candir, at para. 57; R. v. F.(W.J.), 1999 667 (SCC), [1999] S.C.J. No. 61, at paras. 33 to 36. I do not accept the proposition urged by Elizabeth Gayle’s counsel that there is an added requirement that evidence of an equivalent value is not available from another source. This factor may be relevant to a probative value vs. prejudicial effect analysis, but is not required to be considered in relation to the necessity question when the declarant is deceased.

[24] As noted in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 61 to 63, the reliability requirement can be met in one of two ways. One way is to show that no real concern arises from the fact that the statement is presented in hearsay form, because its truth and accuracy can be sufficiently tested. The other, which is pertinent here, is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. In Candir Watt J.A. described the reliability test as follows:

…To justify reception under the principled exception, the prosecutor was required to demonstrate that the statements were reliable because of the circumstances in which they were made. Those circumstances must be sufficient to serve as a surrogate for cross-examination of the declarant, the traditional method of testing the well-documented frailties of hearsay evidence: perception, memory, narration and sincerity.

[25] As Doherty J.A. noted in R. v. Humaid, at para. 50:

…Where, as here, the declarant of the out-of-court statement is not available for cross-examination at trial, the inquiry into the threshold reliability of the out-of-court statement looks for circumstantial guarantees of trustworthiness arising out of the circumstances in which the out-of-court statement was made. These circumstantial guarantees of trustworthiness must be sufficiently supportive of the reliability of the out-of-court statement to permit its admission despite the absence of an opportunity to cross-examine the declarant. If the threshold reliability hurdle is cleared, the ultimate reliability of the out-of-court statement is for the trier of fact [citations omitted.]

[26] Humaid was decided before Khelawon, which confirmed that the court is not limited to a review of the circumstances surrounding the making of the statement, but may consider extrinsic evidence, both confirmatory and conflicting, to determine the threshold reliability issue (at paras. 93 to 100).

[27] As part of the circumstances under which the statement was made, the court may take into account evidence of the relationship between the declarant and the person to whom the statement was made: R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723 (C.A.), at para. 50. Any concerns about the credibility or reliability of the hearsay recipient, however, are left for evaluation by the jury and are not relevant to threshold reliability, although a court may exclude a statement on the basis of its prejudicial effect on the fairness of the trial where the credibility or reliability of the narrator is so deficient that it robs the out-of-court statement of its potential probative value: Humaid, at para. 57.

5. Step Five – Is the Evidence Otherwise Inadmissible?

[28] As Watt J.A. noted in R. v. Moo, at para. 99, while evidence of the relationship between the persons charged and the deceased, including misconduct other than that charged, may be relevant and material in establishing the identity of the deceased’s killer and the state of mind at the time of the killing, “evidence of extrinsic misconduct comes with baggage - moral prejudice (the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged)”.

[29] Where such evidence can be characterized as “prior discreditable conduct,” the Crown has the onus to establish that its probative value on a clearly defined issue in the context of the specific prosecution exceeds any prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[30] In R. v. Johnson, 2010 ONCA 646, [2010] O.J. No. 4153 (C.A.), Rouleau J.A. observed that the first step is to assess the relevance of any proposed evidence that discloses misconduct by an accused other than that which is charged. He noted, at paras. 100 and 101:

…(E)vidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at pp. 938-941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

[31] Where the evidence is relevant, the court must consider whether there is a risk of moral prejudice, that is that the jury may infer guilt from general propensity or that the verdict may be based on prejudice rather than proof, undermining the presumption of evidence. There is also the risk of reasoning prejudice, the distraction of the jury by the earlier misconduct rather than the evidence related to the offence: R. v. Handy, at paras. 139 to 146.

[32] Factors to consider in assessing prejudice include (a) how discreditable the conduct is; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the proposed evidence may confuse issues; and (d) the ability of the accused to respond to the evidence: R. v. B.(L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 at p. 47.

[33] Evidence, although not within the category of prior discreditable conduct, may be excluded where its prejudicial effect exceeds its probative value. As Doherty J. stated in R. v. P.(R.), at paras. 38 to 42, the exercise is no longer designed only to root out the most extreme cases where the probative value is trifling and the potential prejudice is grave. There is a balancing process where the onus is on the accused to demonstrate that the balance favours exclusion of otherwise admissible evidence. The same concerns about moral and reasoning prejudice are engaged when considering the potential prejudicial effect of such evidence.

Analysis

[34] I will now apply these principles to each of the contested pieces of evidence.

[35] First I will deal generally with the issue of relevance of all of the disputed evidence. The evidence in question deals with the relationship between Tiffany and the accused before her death. Some is general (suggesting that there was a level of conflict and strict discipline in the household), while other evidence is more specific (as to a particular conflict that existed in the days before Tiffany died).

[36] I am satisfied that the evidence about the relationship between Tiffany and her father and stepmother is relevant to the questions of the identity of her killer and the intention that accompanied the killing. While evidence of conflict between Tiffany and the accused is not determinative of the fact that one or both accused killed her, or participated in her killing, or had the intention necessary for murder, the relationships between the parties, and the context of what was happening within the family are without question relevant.

[37] Evidence of an escalation in the conflict during the week preceding her killing, including specific conversations during which Tiffany was threatened to be sent back to Jamaica, of her being struck by Elizabeth Gayle, and being told not to come home on the Friday night, if accepted, constitute circumstantial evidence suggesting animus on the part of the accused. The evidence of Royena Smeikoe discloses conflict between Tiffany and both parents, but in particular a specific disagreement with Elizabeth Gayle preceding her death, while the anticipated evidence of Samantha Gayle describes conflict between Tiffany and her father, and identifies Fedrick Gayle as the person who was sending her back to Jamaica.

[38] Next I will turn to the admissibility of each specific category of evidence as state of mind or traditional hearsay, as well as whether particular evidence should be excluded as prejudicial or as evidence of prior discreditable conduct.

[39] Finally, I will provide reasons for admitting other non-hearsay evidence of Kashra Charles at issue in this application.

Hearsay Evidence of Royena Smeikoe

[40] Royena Smeikoe was Tiffany’s classmate. Although they had been friends for only a few months, she and Tiffany spoke daily before and after class and at lunch. Tiffany did not have many friends. Like Tiffany, Royena had also come from Jamaica to live in Canada. Royena said that Tiffany was “not a big talker”. All of Royena’s conversations with Tiffany were in person at school.

[41] Some of Royena’s anticipated evidence is not hearsay. This includes her observations of a scratch on Tiffany’s neck and a bruise on her lip, and of Tiffany’s mood and demeanor, as well as the fact that Tiffany used Royena’s cell phone to call her mother. Tiffany’s statements to Royena that she was concerned about being sent back to Jamaica, and that she didn’t want to go, are evidence of her state of mind, and are admissible as such. Tiffany’s explanation of why she believed that she would have to go back home, and what she had done about it (that she told her mother who in turn told her aunt), is hearsay.

[42] Tiffany’s statements to her friend that she had frequent arguments and was fighting with her parents is hearsay.

[43] What Tiffany told Royena on June 11th – that her parents told her not to come back home, that she had told her Mom what was going on in the house and that her aunt called her stepmother, which angered her parents and led to an argument with her stepmother the previous evening, and that she argued with Elizabeth that morning and that Elizabeth was responsible for the marks that Royena saw on her, which Tiffany said were an accident – is all hearsay.

[44] I find that the circumstances surrounding the making of the statements by Tiffany to Royena enhances their reliability. They were made shortly before Tiffany’s death, the statements about the most recent argument and the circumstances of that argument, the day before she died. Counsel for Elizabeth Gayle, in opposing the admission of the hearsay of Royena Smeikoe argued that Royena had never been in the Gayle home, and was not friends with Tiffany outside of school. The strength of the relationship, and Royena’s inability to view first-hand the conflict between Tiffany and her parents, while capable of being explored in Royena’s cross-examination, do not affect the threshold reliability of the statements. Tiffany was speaking with a school friend, with whom she had developed a relationship over time, where she shared details about her personal life. The evidence of what was said is plausible – Tiffany’s account was restrained and not exaggerated, including her explanation that her stepmother hit her “by accident”. This is consistent with Royena’s description of Tiffany as someone who did not talk a lot.

[45] Aspects of the hearsay are consistent with other evidence: the text messages from Tiffany to her mother on Royena’s cell phone in which Tiffany told her mother she was coming home to Jamaica; Elizabeth Gayle’s own police statement in which she described an argument with Tiffany in the garage the night before she died, and explained that it was about something Tiffany had told her mother leading to a call from her aunt; and the evidence of Samantha Gayle that Tiffany also told her that she was being sent back to Jamaica and that she wanted to talk to her in person about what was going on at home.

[46] There is nothing in the relationship between Tiffany and Royena to suggest that Tiffany had any motive to lie to Royena about what was happening in the home. Royena, for example, did not have it in her power to change Tiffany’s living arrangements. Defence counsel argued that the statements about the source of Tiffany’s injuries should not be admitted because they were not spontaneous, as Royena said, “I had to mostly pull it out of her”. The lack of spontaneity, however, is not equivalent to fabrication, and in my view enhances the reliability of the evidence, suggesting that Tiffany was not exaggerating or telling stories to her friend to impress her or to gain her sympathy. Royena could of course be cross-examined about the circumstances in which these conversations occurred, and of her observations of Tiffany’s demeanour.

[47] The fact that some of what Royena reported about conflict in the home lacked detail, or that her evidence was in parts speculative, such as her statement, “I don’t think she was allowed to invite friends home”, or may have been influenced by what later transpired, are circumstances affecting the accuracy of her observations and recollection, that could be explored in Royena’s cross-examination. Similarly, the fact that the pathologist did not find evidence of a scratch or bruise on Tiffany that would support Royena’s account of observing an injury on Tiffany, might affect her credibility in relation to her observations of Tiffany (non-hearsay evidence), but would not affect the admission of the hearsay statements.

[48] If all of Royena’s proposed evidence were general, speculative or non-specific, this would support an argument that its probative value was weak when compared to the prejudicial effect of vague and impressionistic evidence about conflict in the home. That is not however the case. Much of what Royena reported from her conversations with Tiffany was specific to events that happened in the home the week before Tiffany’s death, describing what Tiffany and the accused said and did.

[49] To the extent that Royena’s evidence disclosed a prior assault by Elizabeth Gayle on Tiffany, which could be characterized as prior discreditable conduct, the admission of such evidence was justified. The alleged assault occurred just before Tiffany’s death, and is part of a series of events that could be relied upon by the Crown to establish motive and animus toward Tiffany on the part of Elizabeth Gayle. To exclude this evidence would remove part of the narrative of events preceding Tiffany’s death. It is important that the jury have all of the evidence about what was happening between Tiffany and each accused in the days before she died. To leave out evidence of conflict because it might disclose a prior criminal act (an assault) would create a sanitized version of events, that in itself would be misleading. There is a significant gap between family conflict of the type described by Tiffany to Royena, including being struck by Elizabeth Gayle in circumstances that Tiffany herself suggested may have been an accident, and the beating death that ultimately occurred. As such, it is unlikely that such evidence would lead the jury to engage in propensity reasoning rather than to examine all of the evidence relating to the identity of Tiffany’s killer and that person’s intention.

[50] Tiffany’s hearsay statements to Royena were accordingly admitted in evidence at trial.

Hearsay Evidence of Samantha Gayle

[51] Samantha Gayle is Tiffany’s half-sister who had come with her to Canada from Jamaica in 2009 and had been sent back to Jamaica by their father a few weeks after her arrival. She was back in Canada at the time of Tiffany’s death but not living at the Savita Road address. She gave a statement to the police on June 14, 2010, in which she reported on certain things Tiffany had said to her in MSN chats and telephone communications, including specific communications just before her death.

[52] Some of Samantha Gayle’s proposed evidence was not hearsay. The fact that she was planning to meet Tiffany at the mall on June 13th, and that she had last spoken to her on the computer was not hearsay. Her evidence that Tiffany said “life sucks right now”, that Tiffany wanted to meet up with her, and to talk to her in person or face to face, and that she didn’t want to go back to Jamaica was evidence of Tiffany’s state of mind.

[53] Tiffany’s explanation for why she was of that state of mind, that her father had threatened to send her back to Jamaica, that she had a boyfriend and her parents knew, and that she could not talk with Samantha over the computer are, as described by Doherty J. in R. v. P.(R.), evidence “that past acts or events referred to in the utterances had occurred”, and are accordingly hearsay.

[54] Again, I find the circumstances in which these statements were made to be supportive of their reliability. They occurred shortly before Tiffany’s death. Tiffany was speaking with her half-sister, with whom she had developed a close relationship. Samantha, having been sent back to Jamaica herself, and having lived in the Gayle household, would have some understanding of Tiffany’s situation. There was no apparent reason for Tiffany to lie about what was happening in the home to Samantha, who had no ability to do anything about her situation. The fact that Tiffany provided some information, but wanted to speak to Samantha in person, suggests that she was looking to her sister for support, and perhaps advice.

[55] Again, there is consistent extrinsic evidence in the form of Tiffany’s statements to Royena that she was being sent back to Jamaica. Although Tiffany’s statements reported by Royena suggest that the conflict was mainly with Elizabeth Gayle, and Samantha’s recollection of the hearsay statements were to the effect that Tiffany’s father was sending her home, I do not regard their evidence as contradictory. The statements recalled by each were not, as Elizabeth Gayle’s counsel suggests, “polar opposites”. The overall thrust of the evidence was consistent, that there was conflict between Tiffany and her parents and that Tiffany was upset because she was being sent back to Jamaica.

Text messages of Tiffany to her Mother

[56] The text messages from Royena Smeikoe’s cell phone consist of an exchange on June 9, 2010 between Tiffany and her mother Sherine Stephenson-Taylor, who was living in Jamaica. Tiffany informed her mother that she was coming back at the end of June and her mother responded that she would see if Aunt Avnel’s daughter could keep her, and asked Tiffany for her address. Tiffany responded that she could not come to the house and provided her address on Savita Road.

[57] Crown counsel argued that the messages are evidence that Tiffany believed that she was going to return to Jamaica at the end of June. Ms Stephenson-Taylor would testify at the trial about telling Tiffany that she was making arrangements for someone else to take her. Crown counsel asserted that the exchange is also evidence of Tiffany’s state of mind – that she was fearful or concerned about people coming over to the house.

[58] Defence counsel suggested that the text messages are open to different interpretations. There may be any number of reasons that Tiffany didn’t want Aunt Avnel’s daughter to come to the house. The fact that the evidence is open to different interpretations, however is not a reason to exclude it, nor do I find that the probative value of this evidence (with respect to Tiffany’s belief that she was being sent back home and her concern about someone coming to the house) is outweighed by any prejudicial effect.

[59] The text messages between Tiffany’s mother and Tiffany were accordingly admitted at trial in their entirety.

Writings Found in the Accuseds’ Bedroom

[60] The writings that have been described as “letters” do not appear to be addressed to anyone, but are more in the nature of an outpouring of Tiffany’s feelings. Voir dire Exhibit 14, which is a photocopy of a page on which someone has traced the letters in red pen, in fact is addressed “Dear diary” and has a date of April 22, 2009.

[61] While the handwriting in this document is different from that in the other writings, defence counsel did not seriously suggest that any of the writings were authored by anyone other than Tiffany. All of the writings were found in a dresser drawer in the master bedroom of the house.

[62] I concluded that the notes at voir dire Exhibits 9, 11, 12 and 13 were admissible at trial, as evidence of Tiffany’s state of mind. They disclose that Tiffany was unhappy and believed that she was causing turmoil in the family.

[63] I did not admit the notes as hearsay evidence of any facts contained in the notes, for example that Tiffany’s parents were angry with her. The notes are an expression of the author’s emotions and perceptions at an undetermined point in time prior to Tiffany’s death. The circumstances in which they were written, including whether Tiffany was reacting to a specific event in the past, and how the notes came to be where they were ultimately located, are unknown.

[64] The reason I excluded Exhibit 14 is that its potential prejudicial effect outweighed its probative value. It is dated more than a year before Tiffany’s death and only three months after her arrival in Canada from Jamaica. While what is written may reflect Tiffany’s state of mind at that time, it is not probative of her state of mind at the time of her death. The document is incomplete. It is one photocopied page, and the original diary was not produced.

[65] The writing at the bottom of the page reads, “From I came here my Dad keep tellin me that he regret takin us and his life is a mes since we came here. Sometime…”. The prejudicial effect of this incomplete statement could be significant, as it might suggest a motive for Tiffany’s killing, without what may have followed in the diary to put the statement in context. As Watt J.A. noted in R. v. Candir, at para. 59, “the evidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to its reliability” (citing R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-21; R. v. Khelawon at para. 3; and R. v. Humaid at para. 57).

Parts of Kashra Charles’ Evidence

[66] Kashra Charles is the daughter of Elizabeth Gayle and was living at the Gayle home at the time of Tiffany’s death, although she was out of the house when the killing took place. Kashra was called as a Crown witness on a number of points. The parts of her anticipated evidence to which the defence took objection consisted of her account of how Tiffany was disciplined, and in particular of corporal punishment. Kashra recalled hearing, but not seeing, Tiffany being struck on prior occasions.

[67] The primary function of the evidence of discipline and prior corporal punishment in this case was to provide narrative and context – as Crown counsel noted in their application, “the unexplained beating death of a 15 year old girl in her own home cries out for context”. Defence counsel opposed the admission of such evidence on the basis that it might cause moral and reasoning prejudice.

[68] I concluded that the probative value of this evidence outweighed any potential prejudice to the defence. There was little risk of moral prejudice, that is that a jury would infer guilt in relation to Tiffany’s death from the prior acts of discipline. As discreditable conduct, it did not approach in any manner the abuse and neglect waged on the victim in R. v. Dooley, 2009 ONCA 910, [2009] O.J. No. 5483 (C.A.), where there might well have been a risk that the jury would be so offended or inflamed by the pattern of abuse, that they might jump to the conclusion that the accused were guilty of murder. Strict discipline and corporal punishment of the type Kashra described are not uncommon; parents may use such methods and may even commit assault on a child without leading to the inference that they would necessarily engage in or participate in the killing of that child. The risk of propensity reasoning is greater where the prior discreditable conduct is a serious criminal act. That is not the case here. As O’Connor J.A. noted in R. v. D.S.F., 1999 3704 (ON CA), [1999] O.J. No. 688 (C.A.), “excluding that evidence would have left the jury with an incomplete and possibly misleading impression of the relationship”.

[69] Accordingly, the evidence of Kashra Charles as to discipline in the Gayle home and her recollection of hearing Tiffany being struck on earlier occasions, was admitted at trial.

K. van Rensburg J.

Released: September 9, 2013.

COURT FILE NO.: 12-1730

DATE: 20130909

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ELIZABETH GAYLE AND FEDRICK GAYLE

pretrial Ruling #5: ADMISSIBILITY OF HEARSAY OF TIFFANY GAYLE AND PRIOR DISCREDITABLE CONDUCT

K. van Rensburg J.

Released: September 9, 2013