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CRIMINAL CODE OFFENCES - Offences against person and reputation - Homicide - First degree murder

Wednesday, June 07, 2017 @ 9:21 AM  

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Appeal by the accused, Elizabeth and Fedrick Gayle, from convictions for first degree murder. The victim, age 15, was Fedrick's biological daughter. She was sent from Jamaica to Brampton by her mother to reside with Fedrick and his wife. The victim was unhappy, feared being returned to Jamaica, and confided in a classmate that she had been involved in a significant argument with Elizabeth. The following morning, the victim was brutally beaten to death in her home. Elizabeth initially told police she did not know who committed the murder, as she awoke to find the victim dead in the bathtub. Four days later, Elizabeth told police that Fedrick killed the victim with a baseball bat. Nine months later, in exchange for release from custody, Elizabeth told police where the bat was located. Two statements attributed to Fedrick were adduced through Crown witnesses. The first statement expressed an inability to wake the victim. The second statement conveyed that he was not in the home on the night of the killing. Neither accused testified. Each took the position that the other had perpetrated the killing. Both accused were convicted of first degree murder following a jury trial. They appealed, alleging errors by the trial judge with respect to evidentiary rulings and the charge to the jury.

HELD: Appeals dismissed. The trial judge did not err in admitting evidence of discreditable conduct and propensity with respect to Fedrick's prior use of physical discipline with the victim in Jamaica, as such evidence was admissible to permit Elizabeth to make full answer and defence. The failure to give a limiting instruction was immaterial given the remoteness in time relative to the killing. The trial judge did not err in admitting the baseball bat into evidence despite the absence of DNA, as sufficient evidence linked the bat to the crime. The jury was properly instructed regarding the use of Elizabeth's statement to police about the location of the bat. The trial judge's refusal of severance was justified and entitled to deference given evidence the accused acted in concert. The trial judge's modified WD instruction in respect of Fedrick's out of court statements were appropriate, and favourable to Fedrick. The instructions to the jury regarding the evidence of Elizabeth's after-the-fact conduct properly reflected the different possible modes of participation in the offence without invitation to use such evidence to determine guilt for first degree murder. The instructions regarding Elizabeth's possible guilt for constructive first degree murder were appropriate with respect to the causation element.

R. v. Gayle, [2017] O.J. No. 2339, Ontario Court of Appeal, R.J. Sharpe, P.S. Rouleau and M.L. Benotto JJ.A., April 12, 2017. Digest No. TLD-June52017005