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

R. Monette, for the Crown

Crown

• and -

Christopher Lee Sharples

R. Litkowski and J. Tuttle, for the Accused

Accused

HEARD: June 10, 11, 12, and 15, 2015

Justice J.R. Henderson

PRETRIAL MOTION NUMBER #1

ACCUSED’S STATEMENTS TO UNDERCOVER OFFICER

INTRODUCTION

[1] On this pretrial motion, the Crown requests a ruling as to the admissibility of statements made by the accused, Christopher Lee Sharples (“Sharples”), to police officer Shaun Carter (“Officer Carter”) while Officer Carter was working in his capacity as an undercover officer.

[2] The Crown tenders four audio recordings of conversations between Officer Carter and Sharples, namely the recordings of June 29, 2012, July 13, 2012, August 17, 2012, and September 5, 2012 (hereinafter respectively called the “June”, “July”, “August” and “September” recordings).

THE BACKGROUND

[3] The accused, Sharples, is charged with the first degree murder of his girlfriend Shana Carter (“Shana”), contrary to section 235(1) of the Criminal Code of Canada.

[4] The Crown alleges that Sharples and the deceased, Shana, lived together in a common-law relationship in Grimsby, Ontario; that they had a young son together; that Sharples and Shana had a troubled relationship; and that Sharples intentionally killed Shana in early December 2010.

[5] Shana went missing on approximately December 4, 2010. Sharples did not report her missing, but on December 11, 2010, Shana's sister, Janine Jarvis, called the Peel Regional Police Service to report that her sister had been missing for about a week. The matter was then referred to the Niagara Regional Police Service (“NRPS”) for investigation.

[6] Consequently, NRPS officers interviewed Sharples several times over approximately the next year. Sharples told the NRPS officers that Shana had left their Grimsby home on December 4, 2010, and had not returned.

[7] On September 21, 2012, two hunters found some skeletal remains in the District of Parry Sound. Those remains were confirmed to be the remains of the deceased, Shana. On September 27, 2012, Sharples was arrested for first degree murder.

THE UNDERCOVER OPERATION

[8] As part of the police investigation, the NRPS engaged the services of Officer Carter, of the Durham Regional Police Service, to pose undercover to investigate the disappearance and suspected death of Shana.

[9] Officer Carter was first engaged in December 2011 and his first undercover assignment was on January 12, 2012. Because Sharples was a known basketball player and fan, Officer Carter was asked to portray someone with extensive basketball knowledge and interest.

[10] Initially, Officer Carter made contact with Jeff Aldham (“Aldham”) who was a personal trainer, a basketball player, and a friend of Sharples. Between January and April 2012 in his undercover capacity Officer Carter met with Aldham several times. During that time Officer Carter expressed his interest in basketball to Aldham and worked out with him. Aldham told Officer Carter about his friend Sharples, and said that he looked up to and respected Sharples as a basketball player.

[11] On April 15, 2012, Officer Carter was introduced by Aldham to Sharples at a gym where the three men discussed the possibility of creating a competitive basketball team together. In fact, by the end of April 2012 these men had formed a basketball team and had joined a men's league.

[12] Thereafter, Officer Carter befriended Sharples. They regularly worked out and played basketball together. Aldham played basketball with them, and occasionally worked out with them. In addition, on several occasions Officer Carter and Sharples socialized together in Niagara Falls where they went to nightclubs and to the Casino.

[13] The undercover operation continued until September 2012. During that time Officer Carter created a fictional persona that resembled Sharples’ life. In particular, Officer Carter led Sharples to believe that Officer Carter lived with his girlfriend who had depression and/or mental health issues; that Officer Carter was regularly arguing and having difficulty with his girlfriend; that Officer Carter wanted out of his relationship but felt trapped in the relationship; and that Officer Carter and his girlfriend had a four-year-old daughter.

[14] During the course of the undercover operation many of the conversations between Officer Carter and Sharples were secretly audio recorded with the consent of Officer Carter. In this motion the Crown requests an evidentiary ruling regarding the June, July, August, and September recordings.

THE ISSUES

[15] The Crown's position is that Sharples’ recorded statements to Officer Carter are admissible evidence because they are relevant to issues that are in dispute at the trial and have high probative value. Specifically, the Crown submits that the statements are relevant to the means by which Sharples allegedly killed Shana; to the way in which Sharples allegedly attempted to cover up the killing; and to Sharples’ motive for wanting to kill Shana.

[16] The position of the accused is that Sharples’ recorded statements have little probative value as the statements are inconsistent with the known facts. Specifically, defence counsel submits that Sharples talked about many different ways of killing a person, but that none of the ways discussed by Sharples were in fact the way in which Shana was actually killed. In addition, Sharples’ statements about covering up a killing by dismembering the body are inconsistent with the forensic evidence.

[17] Further, defence counsel submits that the undercover operation was arranged in a way that encouraged Sharples to make outlandish and/or boastful comments about his girlfriend or Officer Carter’s fictitious girlfriend. Thus, defence counsel submits that Sharples’ statements in these circumstances are not reliable.

[18] Lastly, defence counsel submits that many of the statements made by Sharples are extremely prejudicial.

SUMMARY OF THE AUDIO RECORDINGS

[19] In the June recording Sharples disclosed to Officer Carter that his girl “was a missing person”. Officer Carter expressed some sympathy, but Sharples responded "yeah it's been wonderful".

[20] Officer Carter told Sharples that he felt trapped in his relationship with his fictitious girlfriend. Sharples then suggested several methods that Officer Carter could use to kill his girlfriend, including cutting her brake line, shooting her in the head, and pushing her off the edge of the Scarborough bluffs.

[21] In the July recording Sharples suggested that Officer Carter could strangle his girlfriend. Officer Carter told Sharples that his girlfriend was on medication for depression. Sharples suggested that he should “triple dose her drink"

[22] During the August recording the undercover team arranged for Officer Carter to receive a telephone call from a female police officer posing as Officer Carter's girlfriend. The fictitious couple then staged a telephone argument in the presence of Sharples, which led to a discussion between Sharples and Officer Carter about how to resolve Officer Carter's problem with his girlfriend. Sharples said "you got to get rid of her somehow".

[23] Then, Sharples told Officer Carter about some of the problems he had with his girlfriend, Shana. He described Shana as a prostitute, an escort, and a stripper. He said that she was a runaway who started stripping at age 14. Sharples said, “They need to be gone, man”, and “there is no alternative.”

[24] This led to a conversation in which Sharples said that "you gotta do it in the bathtub" and "you gotta get a saw". Sharples advised Officer Carter that the bathtub thing would work, but that he had to buy the saw and other material over time at Home Depot or Rona. Once it was done, Sharples advised Officer Carter that the body had to be cut into pieces, put in garbage bags, triple bagged, and then deposited in a dumpster or a landfill.

[25] He also talked about the possibility of choking her out, and he said that, “It’s hard to do”, but “What’s the alternative?” During the same conversation Sharples warned Officer Carter to leave his cell phone at home when he disposed of the body because there is a GPS on the cell phone. He told Officer Carter to avoid surveillance cameras, and to tell police that his girlfriend was a prostitute who could have been picked up by anyone.

[26] In the September recording, the undercover team again arranged for a telephone call to Officer Carter from a female police officer posing as Officer Carter's girlfriend. Again, there was a staged argument between Officer Carter and his girlfriend. This led to another discussion about ways to kill Officer Carter's girlfriend.

[27] Sharples told Officer Carter to take his time after his girlfriend had been cut into pieces. He should take a couple pieces at once, triple or quadruple bag it, and wait for garbage day.

[28] He told Officer Carter that he should get his child out of the house before he killed his girlfriend. He said that he could leave the body somewhere so the bears could find it, and that he had so many days before anyone would realize she was missing. He suggested that Officer Carter tell police that his girlfriend was depressed.

[29] Sharples also told Officer Carter that he needed to use a saw called a Sawzall in order to cut the body in the bathtub. Officer Carter asked about the saw and Sharples told him that he had one downstairs. Then, he took Officer Carter downstairs to show him his Sawzall.

[30] Sharples further advised Officer Carter that when he cut up the body it would splatter all over; that he needed to make sure he had a shower curtain to contain the splatter; and he had to get rid of the entire saw.

THE LAW

[31] Evidence that an accused counselled another person as to how to plan, commit, or cover up a murder is evidence of that accused’s bad character. Therefore, much of the proposed evidence in this pretrial motion can be categorized as bad character evidence. Evidence of bad character, or misconduct that goes beyond what is alleged in the Indictment, is presumptively inadmissible. See R. v. Handy, 2002 SCC 56, at para. 31.

[32] There are three potential dangers of bad character evidence as set out in the case of R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 40, which reads as follows:

Thus evidence of propensity or disposition may be relevant to the crime charged, but it is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. As Sopinka J. noted in R. v. D. (L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127‑28, there are three potential dangers associated with evidence of prior bad acts: (1) the jury may find that the accused is a “bad person” who is likely to be guilty of the offence charged; (2) they may punish the accused for past misconduct by finding the accused guilty of the offence charged; or (3) they may simply become confused by having their attention deflected from the main purpose of their deliberations, and substitute their verdict on another matter for their verdict on the charge being tried. Because of these very serious dangers to the accused, evidence of propensity or disposition is excluded as an exception to the general rule that all relevant evidence is admissible.

[33] That being said, evidence of bad character may be admissible if the evidence is so highly relevant that the probative value exceeds the prejudicial effect. The onus is on the Crown to prove that the probative value exceeds the prejudicial effect of the evidence to such a degree that the evidence should be admitted at trial. In that regard, see the Handy case at paras. 31 to 41, and see the case of R. v. B.(C.R.) 1990 142 (SCC), [1990] 1 S.C.R. 717 at p. 735.

[34] The accused in the present case also relies upon the principles that apply to confessions elicited in an undercover Mr. Big operation as discussed in the case of R. v. Hart 2014 SCC 52, [2014] 2 S.C.R. 544.

[35] At paras. 57 to 60 of the Hart decision, Moldaver J. described a Mr. Big operation as one that includes an undercover officer who pretends to work for a large criminal organization; a Mr. Big who pretends to run the criminal organization; the undercover officer leading the accused into believing that he is working for that criminal organization; the undercover officer leading the accused to believe that his ultimate acceptance into the organization depends upon Mr. Big’s approval; and Mr. Big demanding that the accused confess his crimes as a ticket into the criminal organization.

[36] Defence counsel in the present case acknowledges that the undercover operation in this case is not a Mr. Big operation, but submits that some of the principles for the admissibility of confessions made by an accused to an undercover officer still apply.

[37] The defence relies upon paras. 68 to 80 of the Hart decision, wherein Moldaver J. noted that there are several inherent dangers in Mr. Big confessions. In particular, it was noted that there are concerns about the reliability of the confessions in light of circumstances that are carefully calibrated to achieve a confession. Further, it was noted that there are concerns that any confession is invariably accompanied by prejudicial facts about the accused’s character. Lastly, it was noted that there are concerns about police tactics given that the standard legal protection afforded to an accused person does not apply to undercover operations.

ANALYSIS

[38] In order for this proposed evidence to be admissible, the Crown must establish that the evidence is relevant to an issue at trial, and then prove that the probative value of the evidence exceeds its prejudicial effect to such a degree that the evidence should be admitted at trial.

[39] In my view, the proposed evidence in this case can be divided into three categories of potential relevance. First, Sharples’ statements about how a person could kill another person could be relevant to prove that Sharples committed the offence in a certain way. Second, Sharples’ statements about how to cover up the offence could be relevant to show that Sharples engaged in post-offence conduct that may tend to prove that Sharples committed the offence. Third, Sharples’ statements about the nature of his relationship with Shana could be relevant to prove a motive for committing the offence.

[40] Regarding the first category of potential relevance, I note that Sharples told Officer Carter about many ways in which Officer Carter could kill his fictional girlfriend. Those ways included Sharples’ suggestions that Officer Carter could kill his girlfriend by choking her, by cutting her brake lines, by dosing her drink, by shooting her in the head, or by pushing her off a cliff.

[41] However, the evidence of the forensic pathologist, Michael Pollanen (“Pollanen”), is that Shana was not killed by any of the methods discussed by Sharples with Officer Carter. Pollanen found that the cause of death was blunt force trauma by an instrument resulting in fractures to the skull. Sharples did not ever make any statement to Officer Carter about killing anyone by blunt force trauma of any kind.

[42] If Sharples had specifically discussed with Officer Carter how one would obtain a weapon such as a baseball bat, or how one would strike the victim in the head in order to kill her by blunt force trauma, then Sharples’ statements may be relevant to show that Sharples had some knowledge of how to kill a person in this way. However, a generalized discussion about many ways in which a person could be killed is, at best, evidence that Sharples thought about killing someone. It is simply non-specific generalized talk.

[43] Therefore, in my view, all of the statements made by Sharples to Officer Carter regarding possible ways of killing another person have very little relevance to this case.

[44] Moreover, I find that there is a reliability concern with respect to these statements. I accept that the relationship between Sharples and Officer Carter was one that was based almost exclusively on sports, women, and drinking. Consequently, much of the conversation between Sharples and Officer Carter could be described as boastful locker room talk.

[45] As discussed in the Hart decision, when considering the probative value of statements made to an undercover officer, the court must consider the circumstances surrounding the making of the statements. In this case, Officer Carter befriended Sharples and became his workout and drinking buddy. I accept that Officer Carter’s relationship with Sharples promoted a certain male bravado, and it is difficult to know whether Sharples’ statements were thoughtful articulate pieces of advice, or were fantasy-fuelled boasts to a drinking buddy.

[46] In these circumstances, I find that Sharples’ statements about possible ways of killing a person are not very reliable. Considering that these statements have little relevance and low reliability, the probative value of these statements is very low.

[47] Regarding the second category of potential relevance, I note that Sharples provided Officer Carter with a lot of detail about how one may dispose of a dead body and how one may cover up a killing. In particular, Sharples told Officer Carter that if he were to kill his girlfriend, he should kill her in the bathtub; he should use a shower curtain to contain the splatter; he should cut off her limbs and head; he should use a tool called a Sawzall; he should put the pieces of the body into garbage bags; he should triple or quadruple the garbage bags; and he should put the garbage bags out in the trash, in a dumpster, or in a landfill.

[48] However, again, Sharples’ statements to Officer Carter are inconsistent with the forensic evidence. The forensic anthropologist, Kathy Gruspier (“Gruspier”), provided an opinion with respect to the remains of Shana that were discovered in a wooded area in the District of Parry Sound. Gruspier found that Shana’s body was found intact as one might expect, with the torso, head, two legs, and one arm together. It was noted that one arm was missing, but Gruspier attributed the missing limb to scavenging by animals. Gruspier further found that there was no evidence of metal shavings that would indicate an attempt to dismember the body.

[49] Further, the skeletal remains of Shana still had some of Shana’s clothing attached, and there were no garbage bags found in the area. And, the skeletal remains were found in a wooded area, not in a dumpster or landfill.

[50] Therefore, again, what Sharples said to Officer Carter is inconsistent with the known facts. Thus, Sharples’ statements as to how to dispose of a body have little relevance to any issue in this case.

[51] Moreover, as in the first category, there is also a reliability concern in this category of potential relevance. Again, Sharples’ statements about dismembering and disposing of the body may simply be boastful, fanciful statements made to impress his drinking buddy, Officer Carter.

[52] In addition, there is some evidence that Sharples was obsessed with watching forensic television shows such as First 48 and CSI, and it may be that many of Sharples’ ideas originated with those television shows. In fact, Sharples told Officer Carter that the source of his knowledge about dismemberment was a CSI television program.

[53] Therefore, I find that statements made by Sharples in this second category have little relevance and low reliability. Thus, I find that Sharples’ statements about disposing of a dead body and covering up the crime have little probative value.

[54] As an ancillary point in this category, I note that Sharples made some statements to Officer Carter about avoiding surveillance cameras and leaving his cell phone at home when he was disposing of the body. He further purported to advise Officer Carter as to what he should tell the police when he was interviewed. In my view, those statements are so intertwined with Sharples’ statements about dismembering and disposing of the body that those statements also have little probative value.

[55] Regarding the prejudicial effect of Sharples’ statements as to how to kill a person, how to dispose of a body, and how to cover up a crime, I accept that the prejudicial effect is very high. Specifically, if a jury heard that Sharples had discussed many ways in which a person such as Officer Carter could kill his girlfriend, I find that the jury would view Sharples in a very bad light. Moreover, Sharples’ statements about killing a person in the bathtub, containing the splatter with a shower curtain, and dismembering the body, would no doubt resonate with the jury.

[56] In my view, this type of evidence could lead a jury to believe that Sharples is a bad person of bad character, and conclude that he is probably guilty of the crime alleged, or, in the alternative, that he is deserving of some punishment because of his bad moral character.

[57] For these reasons, I find that the prejudicial effect of the statements in the first and second categories of potential relevance far exceeds any probative value. I find that all of Sharples’ statements to Officer Carter regarding how to kill a person, how to dispose of the body, and how to cover up the crime are not admissible.

[58] I next turn to the third category of potential relevance, those statements made by Sharples regarding the nature of his relationship with Shana. In particular, Sharples told Officer Carter, among other things, that he felt trapped in his relationship, that he had no alternative but to get rid of Shana, that Shana was “a bitch”, and that he had concerns for his son if he did not get rid of Shana. In my view, all of these statements are relevant to the issue of motive. These statements establish animus from Sharples toward Shana. In the context of an alleged murder, these statements are highly relevant.

[59] Moreover, there is corroborative evidence of animus in this case. In particular, Sharples’ mother attended at the Sharples/Shana residence on the morning of December 4, 2010 to pick up Sharples’ son. On that morning, Sharples’ mother confirmed that she observed an argument between Sharples and Shana, and that she heard Shana say that she was going to torch the house with Sharples inside it.

[60] Similarly, several of Sharples’ co-workers have provided evidence that Sharples had talked about arguments between himself and Shana, including at least one occasion in which Sharples said that he had attempted to choke Shana.

[61] I