ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 38/14
DATE: 2015/07/08
B E T W E E N:
Her Majesty the Queen
Crown
R. Monette, for the Crown
- and -
Christopher Lee Sharples
R. Litkowski and J. Tuttle, for the Accused
Accused
HEARD: June 23, 2015
Justice J.R. Henderson
PRETRIAL MOTION NUMBER #7
TOOLMARK EXPERT EVIDENCE
INTRODUCTION
[1] In this pretrial motion, the Crown requests a ruling as to the admissibility of expert evidence from Benjamin Sampson (“Sampson”), a forensic scientist who has expertise in toolmark identification.
[2] Sampson examined marks that were found on the acrylic bathtub/shower wall in the bathroom in the Grimsby residence of the accused, Christopher Lee Sharples (“Sharples”). In summary, Sampson concluded that one of the marks is consistent with damage caused by a tool such as a saw or serrated knife.
[3] Defence counsel submits that this proposed evidence is not relevant to this proceeding and, if it has any relevance, the probative value of the evidence does not exceed its prejudicial effect. Therefore, defence counsel submits that Sampson’s evidence should not be admitted at this trial.
SAMPSON’S EXPERT EVIDENCE
[4] Sharples is charged with the first degree murder of Shana Carter (“Shana”), his common law spouse. It is the Crown’s theory that Sharples killed Shana in their Grimsby residence on or about December 4, 2010, and, thereafter Sharples attempted to dispose of the body.
[5] Shana’s body was found almost two years later, in September 2012, in a wooded area in the District of Parry Sound. Her skeletal remains were examined by a forensic anthropologist, Kathy Gruspier (“Gruspier”).
[6] On September 20, 2012, police officers conducted a detailed search of Sharples’ residence in Grimsby. At the same time Sampson examined some marks on the bathtub/shower wall in the second floor bathroom of the residence. Sampson identified three marks on the shower wall that were of interest. Accordingly, portions of the acrylic shower wall were cut out for a detailed examination by Sampson.
[7] Two of the three marks on the shower wall had no identification value. The only mark that had any value for examination purposes was marked as Item #28. Regarding this mark, Sampson concluded, “The characteristics of the damage area to Item #28 are in agreement with damages typically caused by tool such as, but not limited to, a saw or a serrated knife.”
[8] In cross-examination, Sampson acknowledged that there were many different types of saws and serrated knives that could have caused this mark. Moreover, there were no individual characteristics of the mark that would permit him to more particularly identify any tool that could have caused the mark.
[9] Subsequently, in 2015, Sampson was asked to examine a saw blade that had been seized from a Sawzall saw that had been located in the basement of Sharples’ residence. After testing, Sampson concluded that this saw blade “could neither be identified nor eliminated as having caused the tool marks on Item #28.” In cross-examination, Sampson acknowledged that the results of his testing of the saw blade were inconclusive.
THE LAW REGARDING EXPERT EVIDENCE
[10] In the case of R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402 (SCC), Sopinka J. at para. 17 stated that the admissibility of expert evidence depends upon the application of four criteria, namely: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.
[11] In the case of R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (OCA), Doherty J. refined the Mohan test, by suggesting a two-step process. In reference to the Mohan criteria, at para. 76, Doherty J. wrote:
Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This "gatekeeper" component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.
[12] This two-step process for admissibility of expert evidence has been recently adopted with minor adjustments by the Supreme Court of Canada in the case of White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22 to 24.
ANALYSIS
[13] Defence counsel does not dispute Sampson’s qualifications, and does not dispute that Sampson’s expertise goes beyond the scope of a layperson’s expertise. Defence counsel also agrees that there is no automatic exclusionary rule.
[14] Therefore, in this case the admissibility of Sampson’s evidence depends upon whether the Crown can prove that the proposed evidence is relevant to an issue at trial, and if so, that the probative value of the evidence exceeds its prejudicial effect.
[15] Regarding probative value, it is the Crown’s theory that Sharples killed Shana at their Grimsby residence, and that Sharples attempted to cover up the murder by either dismembering or attempting to dismember Shana’s body in the second floor bathtub. Thus, the Crown submits that the expert evidence of a possible saw mark on the shower wall in the bathroom is relevant to the Crown’s theory, and that it has significant probative value.
[16] The main difficulty with the Crown’s position is that there is no evidence at all that Shana’s body was dismembered or that anyone attempted to dismember it. Her body was found generally intact. The torso, head, legs, and one arm were together as one might expect.
[17] The forensic anthropologist, Gruspier, testified that there was no evidence of dismemberment. Gruspier stated that any missing parts of the body would be attributable to scavenging by animals. Further, Gruspier testified that she checked for and found no metal shavings that would indicate an attempt to dismember the body. Therefore, evidence of an apparent toolmark in the bathroom would seem to have little relevance to the circumstances of this case.
[18] The Crown relies, in part, upon statements made by Sharples to an undercover police officer, Officer Shaun Carter (“Officer Carter”), in which Sharples discussed ways in which Officer Carter might dispose of the body of Officer Carter’s fictitious troublesome girlfriend. However, in another pretrial decision in this case, I found that those statements were not admissible because the statements had little relevance and low reliability. Consequently, Sharples’ statements to Officer Carter cannot form an evidentiary foundation for Sampson’s proposed evidence.
[19] Therefore, I accept the defence submission that there is no nexus between Sampson’s proposed evidence and the evidence as to what happened to Shana’s body. The Crown’s theory that there must have been an attempted dismemberment has no evidentiary foundation. It is mere speculation.
[20] Further, even if there was a nexus, the value of Sampson’s expert evidence is weak. Specifically, the mark on the shower wall was approximately at waist or shoulder level and not in a location where one might expect to find it if it was a result of an attempted dismemberment. In addition, Sharples conceded that the mark on the shower wall could have come from many different types of saws or serrated knives.
[21] At trial, if this evidence were admitted, it would be necessary for the trial judge to caution the jurors that they could not reasonably infer from this evidence that Sharples attempted to dismember Shana in the bathtub. To do so would amount to mere speculation, and that would not be a permitted use of this evidence. Therefore, I find that the proposed evidence has little or no probative value.
[22] Regarding prejudicial effect, I accept that any discussion of a possible dismemberment of Shana’s body, without an evidentiary foundation, would be highly inflammatory. It would only serve to distract the jury from the relevant issues. Moreover, if this evidence came from an expert such as Sampson, I find that a jury might be inclined to give this evidence more value than it is worth and could attempt to use this evidence for an impermissible purpose.
[23] In conclusion, I find that the prejudicial effect of Sampson’s proposed evidence far exceeds its probative value. Sampson’s evidence is not admissible at trial.
Henderson J.
Released: July 8, 2015
COURT FILE NO.: 38/14
DATE: 2015/07/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Christopher Lee Sharples
Accused
PRETRIAL MOTION NUMBER #7
TOOLMARK EXPERT EVIDENCE
Henderson J.
Released: July 8, 2015