ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 38/14
DATE: 2015/07/15
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 19, 2015
Justice J.R. Henderson
PRETRIAL MOTION NUMBER #6
ANTE MORTEM STATEMENTS OF SHANA CARTER
INTRODUCTION
[1] The Crown brings this pretrial motion for a ruling as to the admissibility of ante mortem statements made by Shana Carter (“Shana”) to two of her friends, Bobbi Feener (“Feener”) and Destiny Downey (“Downey”).
[2] The accused, Christopher Lee Sharples (“Sharples”), is charged with the first degree murder of his girlfriend, Shana. The Crown alleges that Sharples and Shana lived together in a common law relationship in Grimsby, Ontario; that they had a young son, Levaughn; that Sharples and Shana had a troubled relationship; and that Sharples intentionally killed Shana on or about December 4, 2010.
[3] As part of its case, the Crown wishes to call Feener and Downey to testify as to statements Shana made to them. The Crown submits that these statements are relevant to the issues of Shana’s state of mind, the nature of the relationship between Sharples and Shana, and Sharples’ motive to commit this offence.
[4] Defence counsel acknowledges that the abovementioned issues are relevant to this case. However, defence counsel submits that the proposed evidence should not be admitted pursuant to the principled exception to the hearsay rule. Further, even if the evidence is prima facie admissible after consideration of the hearsay rule, defence counsel submits that it should be excluded from the trial as the prejudicial effect of the evidence exceeds its probative value.
SUMMARY OF THE ANTE MORTEM STATEMENTS
[5] Feener lives in Mississauga and she is Shana’s longtime friend. Before she moved into Sharples’ Grimsby residence in May 2010, Shana had lived in Brampton and had worked with Feener at clubs in the Brampton area.
[6] Feener testified that Feener and Shana talked on the telephone to each other approximately twice per week, communicated by text, and communicated by Facebook messages.
[7] Feener testified that in the period leading up to Shana’s disappearance in early December 2010, Shana told Feener that she was unhappy in her relationship. She also told Feener in November 2010 that she was looking forward to celebrating her birthday at a party to be held in Grimsby on December 18, 2010.
[8] Further, in a Facebook message to Feener dated November 26, 2010, Shana wrote, regarding Sharples, “He said he’ll give me money for first and last. He seems like he’ll just let us go!! I’d rather him try to get me to stay but he don’t love me.”
[9] Downey lives in Eastern Canada and she is also Shana’s longtime friend. Shana had been raised in Nova Scotia. After Shana moved to Ontario, Downey stayed in contact with her by telephone, text, and Facebook messages. She testified that they were in contact almost daily.
[10] Downey testified that during the year 2010, Shana was pretty depressed. She said that she was troubled by her relationship with Sharples. Shana told Downey that Sharples was “very snappy” and “aggressive”, and that Shana wanted to move out.
[11] Downey also testified that Shana told her about a physical incident that had occurred between Sharples and Shana a few weeks before Shana disappeared. She testified that Shana told her that she had found some text messages on Sharples’ phone about Sharples using steroids. When Shana confronted Sharples, an argument ensued. Shana said that as a result of the argument, Sharples threw her down on the floor and grabbed her by the neck.
THE LEGAL ISSUES
[12] The proposed evidence in this motion engages two legal principles; namely the hearsay evidence exclusionary rule, and the bad character evidence exclusionary rule. These two exclusionary rules are often co-mingled in domestic homicide cases, as discussed in the recent Ontario Court of Appeal decisions in R. v. Moo, 2009 ONCA 645, and R. v. Carroll, 2014 ONCA 2.
[13] Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertions. See the case of R. v. Baldree, 2013 SCC 35 at paras. 30-32.
[14] In the present case, the Crown relies upon the state of mind exception to the hearsay rule as described in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 168, and the principled exception to the hearsay rule as described in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 42.
[15] The principled exception to the hearsay rule is summarized by Charron J. at para. 2 of Khelawon as follows:
When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.
[16] Defence counsel accepts that some of the proposed evidence may fall within the state of mind exception to the hearsay rule, but submits that none of the proposed evidence meets the reliability criterion of the principled exception to the hearsay rule.
[17] The next step in the analysis, if the proposed evidence is prima facie admissible after consideration of the hearsay rule, is for the court to consider the rule against the admissibility of evidence of bad character or extrinsic misconduct.
[18] 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. However, evidence of bad character may be admissible if the probative value of the evidence exceeds its prejudicial effect to such a degree that the evidence should be admitted at trial. In that regard, see the Handy case at paras. 31-41, and see the case of R. v. B.(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717 at p. 732-735.
[19] Lastly, I accept, and the parties agree, that with respect to both the hearsay evidence rule and the bad character evidence rule, the onus is on the Crown to prove that the proposed evidence is admissible at trial.
ANALYSIS
[20] As discussed in Khelawon, in order to prove that hearsay evidence is admissible pursuant to the principled exception to the hearsay rule, the Crown must show that the evidence meets the twin criteria of reliability and necessity. The necessity element is met in this case as Shana is deceased.
[21] Regarding the reliability factor, the traditional concerns about the inherent unreliability of hearsay evidence are summarized by Fish J. in the Baldree decision at para. 32. In consideration of those concerns, defence counsel submits that Feener and Downey are unreliable witnesses because they both testified in a vague manner; they both have some memory problems; and they both were feisty witnesses who seemed to be biased against Sharples.
[22] Further, defence counsel submits that Shana’s statements to her friends are inherently unreliable as there is evidence that suggests that Shana had some mental health issues, a drug addiction problem, and a motive to denigrate Sharples because of a potential custody dispute over Levaughn.
[23] Lastly, defence counsel notes that there is evidence from Janine Jarvis (“Jarvis”), Shana’s sister, that is inconsistent with the proposed evidence as Jarvis was not aware of any domestic problem between Sharples and Shana. It is submitted that these factors in combination render the evidence of Shana’s ante mortem statements so unreliable that it should not be admitted at the trial.
[24] I accept the defence submissions that there are some frailties in the proposed evidence and that the accused has some ammunition with which to challenge this evidence. However, at this stage the role of the court is not to decide the facts of the case, nor is it to decide the ultimate reliability of this evidence; the role of the court at this stage is only to decide if the proposed evidence meets the level of “threshold reliability”. See the Khelawon decision at paras. 50-55.
[25] In my view, any memory problems or vagueness issues can be adequately explored by cross-examination of Feener and Downey at trial. Regarding bias, it is not unusual for any witness to have some bias for or against an accused person. In the present case, even if Feener and Downey have a bias against Sharples, it could also be said that another Crown witness, Deborah Sharples, may have a bias in favour of Sharples. I therefore accept that any bias issue can also be dealt with by cross-examination at trial.
[26] Furthermore, although Shana is not available for cross-examination, the issues surrounding Shana’s mental health, her possible drug addiction, and a possible dispute over Levaughn, can still be adequately dealt with by the examination and cross-examination of other witnesses at trial. As for the alleged inconsistency with Jarvis’ evidence, that issue too can be adequately explored in cross-examination of all three of Feener, Downey, and Jarvis.
[27] In support of admitting this evidence, I note that there is some external corroboration of Feener’s evidence. Feener’s oral testimony that Shana was unhappy in her relationship is supported in part by the Facebook message. In addition, Feener’s testimony is also corroborated by statements made by Sharples to an undercover officer that he had provided Shana with money for her first and last months’ rent so she could move out.
[28] Similarly, the physical incident described by Downey is corroborated by testimony from some of Sharples’ coworkers. In particular, Gary Johnson testified that there was an incident in which Sharples told him that he had grabbed Shana by the neck and held her against a wall.
[29] For these reasons, I find that the proposed evidence meets the level of threshold reliability. Therefore, all of this evidence is prima facie admissible pursuant to the principled exception to the hearsay rule.
[30] The next step in the analysis is to consider the rule against the admissibility of evidence of bad character or extrinsic misconduct. In that respect, the Crown must prove that the probative value of this evidence exceeds its prejudicial effect to such a degree that it should be admitted at trial.
[31] In my view, the probative value of ante mortem statements made by the deceased in a domestic homicide case is high. In such cases, the nature of the relationship between the accused and the deceased, the state of mind of the deceased, and the motive or animus of the accused are all highly relevant issues. In that respect see para. 104 of the Carroll decision.
[32] In domestic homicide cases the spouse of the accused is deceased. Therefore, if the ante mortem statements were not admitted, the jury would hear only a distorted view of the issues. For example, the accused may choose to testify at trial as to the state of the domestic relationship, but the jury will never be able to hear the deceased’s view of the state of the relationship except through hearsay evidence. For this reason, hearsay evidence is often admitted to provide the jury with a more balanced perspective.
[33] In the present case, the nature of the relationship, Sharples’ motive to commit the offence, and Shana’s state of mind are all relevant issues for trial. Moreover, the defence suggestion that Shana was suicidal or depressed heightens the probative value of evidence of Shana’s state of mind. Therefore, I find that Shana’s ante mortem statements have high probative value.
[34] Regarding prejudicial effect, it is almost inevitable that this type of evidence will include some evidence of the accused’s bad character. For example, in order to show a motive for the killing or animus towards the deceased, the Crown will almost always adduce evidence that by its nature portrays the accused in a negative light. However, in spite of the negative portrayal of the accused, because the purpose of the evidence is to establish motive or animus, this type of evidence is regularly admitted at trials of domestic homicide cases.
[35] As Watt J. stated in the Carroll case at para. 122:
First, in cases of domestic homicide, evidence may be admitted during the case for the Crown, including evidence of extrinsic misconduct, that elucidates the nature of the relationship between the spouses. This evidence may tend to establish animus or motive on the part of one spouse, and thus be relevant to prove that the killer of the deceased was the spouse with the animus or motive, rather than someone else, and that the killing was murder: Moo, at para. 98; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64; and R. v. Van Osselaer, 2002 BCCA 464, 5 B.C.L.R. (4th) 73, at para. 23.
[36] Further, it is not the admissibility of this evidence that is the true concern; it is the possible improper use of this evidence that is the concern. That is, the court must guard against the prejudicial effect that may occur if the jury were to use the evidence for an improper purpose. If the purpose of the evidence is to prove motive or animus, that is not an improper purpose. In my view, the jury in this case can be instructed as to the proper use of this evidence by way of a mid-trial and/or final instruction.
[37] For all of these reasons, in consideration of the bad character evidence exclusionary rule, I find that the probative value of this evidence exceeds its prejudicial effect such that the evidence should be admitted at this trial.
CONCLUSION
[38] In summary, I find that Shana’s ante mortem statements to Feener and Downey constitute evidence that is prima facie admissible pursuant to the principled exception to the hearsay rule. Further, I find that the probative value of this evidence exceeds its prejudicial effect such that these ante mortem statements are admissible at this trial.
Henderson J.
Released: July 15, 2015
COURT FILE NO.: 38/14
DATE: 2015/07/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Christopher Lee Sharples
Accused
PRETRIAL MOTION NUMBER #6
ANTE MORTEM STATEMENTS OF SHANA CARTER
Henderson J.
Released: July 15, 2015