ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 38/14
DATE: 2015-08-05
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 15, 16, 17, 18, and 22, 2015
The Honourable Justice J.R. Henderson
PRETRIAL MOTION NUMBER #3
ACCUSED’S STATEMENTS TO POLICE OFFICERS
INTRODUCTION
[1] Christopher Lee Sharples ("Sharples") is charged with the first-degree murder of his girlfriend, Shana Carter (“Shana”). In this pretrial motion the parties contest the admissibility of statements made by Sharples, prior to his arrest, to various police officers during the course of the police investigation into Shana’s disappearance.
[2] The defence submits that Sharples’ statements were not made voluntarily, but rather were made involuntarily as a result of police pressure. Moreover, the defence submits that the police officers breached s.7 of the Canadian Charter of Rights and Freedoms ("the Charter") by failing to inform Sharples of his right to remain silent, and breached s.10(b) of the Charter by failing to inform Sharples that he had the right to retain and instruct counsel without delay. Therefore, defence counsel submits that all of these statements are not admissible at trial.
[3] It is the Crown's position that all of Sharples’ statements were made voluntarily, and that there has been no breach of s.7 or s.10(b) of the Charter. Therefore, the Crown submits that all of Sharples’ statements to the police officers are admissible at trial.
BACKGROUND
[4] The Crown alleges that Sharples and Shana were living together in a common law relationship in Grimsby, Ontario, when Shana went missing on approximately December 4, 2010. Sharples did not report her missing, but on December 11, 2010, Shana’s sister, Janine Jarvis (“Jarvis”), called the Peel Regional Police Service (“PRPS”) to report that Shana had been missing for approximately one week.
[5] Constable Michael Garisto of the PRPS was assigned to deal with the missing persons report. Consequently, Officer Garisto spoke with Sharples by telephone on December 11, 2010, and then Officer Garisto referred the matter to the Niagara Regional Police Service (“NRPS”).
[6] On December 12, 2010, NRPS Officer Martin Rosborough attended at Sharples’ Grimsby residence, and spoke with Sharples in person on his doorstep.
[7] NRPS Officer Mike Daniels did some further investigation into this matter, and on December 14, 2010, he attended at Sharples’ residence where he spoke with Sharples. At that time Officer Daniels also completed a Search Urgency form regarding the missing person, Shana.
[8] On December 22, 2010, Officer Steven Scriven of the NRPS received a telephone call from Shana's cousin, Bobbi Feener (“Feener”), who inquired about the missing persons investigation. Officer Scriven then reviewed the information that was in the police file, and on December 23, 2010, Officer Scriven spoke with Sharples at Sharples’ residence. At that time Officer Scriven completed a Missing Persons Questionnaire by recording Sharples’ answers to the specific questions asked of him. Then, on December 25, 2010, Officer Scriven had a follow-up telephone conversation with Sharples.
[9] This matter was then assigned to Detective James Taylor of the NRPS for further investigation. Detective Taylor spoke to Sharples by telephone on December 30, 2010, and arranged for Sharples to meet with him the next day at the Grimsby police station.
[10] On December 31, 2010, Sharples attended at the Grimsby police station, and participated in a video recorded interview conducted by Detective Taylor (“interview number one”). That interview lasted for approximately one hour.
[11] Subsequent to interview number one, Detective Taylor met with the police investigative team and then contacted Sharples to arrange for Sharples to attend the police station for a second video recorded interview.
[12] On January 31, 2011, Sharples again attended the Grimsby police station and participated in a second video recorded interview with Detective Taylor (“interview number two”). That interview lasted for approximately 30 minutes. Toward the end of interview number two, Detective Taylor asked Sharples to agree to attend before another police officer for a polygraph interview.
[13] On February 2, 2011, Sharples left a telephone message for Detective Taylor in which Sharples said that he had concerns about doing the polygraph interview. Then, on February 3, 2011, Sharples talked with Detective Taylor by telephone and told him that he would not be attending for the polygraph interview. In that telephone call Detective Taylor also engaged Sharples in further conversation about Shana’s disappearance.
[14] On September 28, 2011, Detective Taylor called Sharples on the telephone and asked Sharples to provide a toothbrush that might contain a sample of Shana's DNA. There was then a follow-up telephone conversation between Detective Taylor and Sharples about that same issue on October 4, 2011.
[15] All of the aforementioned statements were made by Sharples to police officers during the course of the police investigation. At no time prior to making any of these statements was Sharples informed that he had a right to remain silent, that whatever he said could be used as evidence against him, or that he had a right to retain and instruct counsel without delay.
[16] On September 21, 2012, two hunters found some skeletal remains in a wooded area in the District of Parry Sound. Those remains were later confirmed to be the remains of Shana. On September 27, 2012, Sharples was arrested and charged with Shana’s murder.
THE LAW
[17] All of Sharples’ statements were made to persons in authority. Therefore, pursuant to the confessions rule, the onus is on the Crown to prove beyond a reasonable doubt that the statements made by Sharples to the police officers were made voluntarily. See the decisions in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500 at para. 11 and R. v. Lam, 2014 ONSC 3538 at para. 232.
[18] In the case of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Iacobucci J. reviewed the law regarding confessions. He concluded that there are no hard and fast rules for determining voluntariness; rather, the determination of voluntariness requires a contextual analysis. Threats, promises, oppression, the accused’s operating mind and police trickery were all matters to be considered. The legal test is whether the will of the accused has been overborne by the conduct of the police. See the Oickle decision at paras. 47-71.
[19] The presence or absence of a caution is a factor in determining the voluntariness of a statement. In the case of R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 31, Charron J. wrote:
Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention:
[20] Subsequently, also in para. 31 of the Singh decision, Charron J. repeated with approval a well-known passage from p. 267 of the decision in Boudreau v. The King, 1949 26 (SCC), [1949] S.C.R. 262, as follows:
The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was given is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of the Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and, in many cases, an important one.
[21] In accordance with the abovementioned passages from Singh, I accept the general principle that a police officer is expected to caution a person who is a suspect in a criminal investigation. The usual caution should inform the suspect that he has a right to remain silent, and that if he chooses to say anything to the officer it may be used as evidence against him.
[22] That general principle is supported by the decision in R. v. Worrall, [2002] O.J. No. 2711. At paras. 104-106 of Worrall, Watt J. implied that when a person is suspected of having committed a crime it would be “appropriate or prudent” to caution him that he had a right to refuse to answer police questions and that anything he said could be used in evidence against him. The absence of such a caution was described as an “informational deficit”. Watt J. wrote at para. 106: “Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.”
[23] The determination as to when a person becomes a “suspect” and is no longer simply a “person of interest” has been the subject of much discussion. In R. v. Morrison, [2000] O.J. No. 5733, Trafford J. wrote at p. 26: “A person is a ‘suspect’ when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime. It is an objective test, not a subjective one, that is to be applied to the totality of the information.”
[24] Similarly, in the Worrall decision, Watt J. at para. 104 expressed the view that once a police officer had information that “would alert any reasonably competent investigator to the realistic prospect” that the death of the deceased may have been associated with an unlawful act committed by the person being questioned, the officer should caution that person.
[25] Further, in the case of R. v. D.(A.), [2003] O.J. No. 4901, Dambrot J. at para. 75 wrote:
The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to the use the words of the Major Case Manual, a person’s ‘background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry’.
[26] Finally, it must be remembered that the presence or absence of a caution is not determinative of the voluntariness issue. It is a factor in the consideration of the voluntariness of the statement, and in many cases an important one. See the Bouchard decision at p. 267, the D.(A.) decision at para. 63, and R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (OCA) at para. 88.
WAS SHARPLES A SUSPECT?
[27] I find that at the time of the statements made by Sharples to Officers Garisto, Rosborough, Daniels and Scriven, Sharples was not suspected of having committed a crime. I find that during this initial stage the police officers were dealing with a missing persons investigation, not a criminal investigation.
[28] Sharples was a person of interest during the initial stage of the investigation, but he was not suspected of causing Shana’s death. The case was clearly treated by Officers Garisto, Rosborough, Daniels, and Scriven as a missing persons case. This is corroborated by the fact that Officer Daniels completed a Search Urgency form and Officer Scriven completed a Missing Persons Questionnaire.
[29] The question of whether Sharples became a suspect during the time he was communicating with Detective Taylor is more complex. By the start of interview number one on December 31, 2010, Detective Taylor knew that Sharples and Shana had been in a troubled on-again, off-again relationship; that Sharples had not reported Shana missing; that Sharples had been dismissed from his employment in 2004 because of his harassment of a female; that Sharples had a prior assault conviction; and that Shana had not contacted her young son since December 4, 2010.
[30] In addition, prior to interview number one, Detective Taylor had information from Shana’s mother that Shana had never disappeared for this long in the past and that she did not like to walk alone in the dark. That information was in conflict with Sharples’ statement that Shana had left the home alone on foot at approximately 10:30 p.m. on a very cold winter night.
[31] Also, on the morning just prior to interview number one, Detective Taylor’s supervisor, Sergeant Nadeau, told Detective Taylor that he had received information from a confidential informant that Sharples had in the past discussed ways of killing Shana, including by throwing her off the escarpment in Grimsby.
[32] I also note that Detective Taylor had been in consultation with Sergeant Monroe of the NRPS Major Crime Unit, and during interview number one Detective Taylor left the interview room in order to privately consult with Sergeant Monroe.
[33] Despite this information and the peripheral involvement of the Major Crime Unit, I find that interview number one was primarily an interview in the course of a missing persons investigation. At that point there was no evidence that any crime had been committed, and there was no realistic basis to believe that Shana had been harmed as a result of an unlawful act committed by Sharples. However, there was evidence that suggested that Shana possibly committed suicide, accidentally died, or deliberately ran away. Specifically, the NRPS officers had information that Shana had some mental health issues, that she had been depressed, that she may have a drug problem, and that she had gone missing in the past.
[34] Moreover, the questions asked by Detective Taylor on interview number one were primarily designed to gather information with respect to Shana, her activities, where she might have gone, and with whom she associated. Detective Taylor knew that Sharples was the last known person to have seen Shana, and therefore, if Shana was missing, it was logical for him to question Sharples about these matters. Therefore, I find that at the time of interview number one, Sharples was not a suspect in a criminal investigation.
[35] In between interview number one on December 31, 2010, and interview number two on January 31, 2011, I find that the nature of the police investigation changed. On January 4, 2011, there was a police team meeting that included Detective Taylor, Sergeant Nadeau, and Sergeant Monroe. That team prepared a list of further tasks to be performed in the investigation. Those tasks included contacting Danny, Shana’s former boyfriend/pimp in Brampton, and contacting the Calgary police department about another boyfriend/pimp named Travolta.
[36] Also, on January 4, 2011, Detective Taylor prepared a brain-storming checklist in which Detective Taylor himself questioned many pieces of information that he had received from Sharples. From this checklist it certainly appears that Detective Taylor had serious questions as to whether Sharples was being truthful with him.
[37] Then, on January 13, 2011, there was another police team meeting at which the NRPS officers decided that Sharples would be asked to return to the police station for a second interview. I find that the team decided that Detective Taylor would ask Sharples more difficult questions on interview number two, and that Detective Taylor would ask Sharples to take a polygraph interview. On the witness stand Detective Taylor acknowledged that the purpose of the polygraph interview was to test Sharples’ statements with the reliability of a machine.
[38] Therefore, although suicide and accidental death had not been eliminated as possibilities, I find that by the start of interview number two the NRPS officers had changed the focus of their investigation to that of a possible homicide. Further, by the time of interview number two on January 31, 2011, the police investigation had cleared both Danny and Travolta as possible suspects. Therefore, as of January 31, 2011, if there was any suspect in a criminal investigation, there was only one and it was Sharples.
[39] This state of affairs is evidenced by the way in which Detective Taylor conducted interview number two. The first several minutes of the interview were a review of some of the things that had been discussed earlier, but the tone of the interview changed at approximately page 16 of the transcript. At that point Detective Taylor said: “There comes a point in time in the investigation where you gotta ask some difficult questions…we’re gonna start asking you some difficult questions…do you have any idea where she is. Do you know where she is?...”. Shortly thereafter, Detective Taylor asked: “Did you have anything to do with her disappearance whatsoever?…You’re not responsible for her disappearance or anything like that?...”.
[40] I find that the NRPS officers had planned for Detective Taylor to ask Sharples these “difficult questions” on interview number two in the hope of obtaining a confession. They suspected that Sharples had committed a crime, and asking these “difficult questions” was part of the criminal investigation.
[41] Accordingly, I find that Sharples was a suspect in a criminal investigation into the disappearance of Shana at the time of interview number two on January 31, 2011. Therefore, a police officer should have cautioned Sharples prior to interview number two and prior to Sharples making any further statement to any police officer.
VOLUNTARINESS
[42] As of January 31, 2011, prior to interview number two, a police officer should have cautioned Sharples that he had the right to remain silent and that anything he said could be used as evidence against him. No police officer did so. However, the absence of a caution is only one factor to be considered in the voluntariness issue.
[43] The court must still assess whether, despite the absence of the caution, Sharples voluntarily answered Detective Taylor’s questions. If Sharples’ statements were made voluntarily, barring any violation of the Charter, they are admissible.
[44] In that respect, I find that Sharples was not subjected to any excessive duress during interview number two, and that Detective Taylor did not employ any tactics that could be described as oppressive or police trickery. The beginning of interview number two was a pleasant conversation, until the point at page 16 of the transcript when Detective Taylor started to ask the difficult questions.
[45] I find that Sharples came to the Grimsby Police Station for interview number two of his own accord on his own schedule. The interview had been arranged by telephone a few days earlier, but on January 28 Sharples called with a request to re-schedule to January 31, and Detective Taylor accommodated his request. Sharples was not escorted to the police station, and Detective Taylor did not at any time demand or order Sharples to attend for an interview. Further, during the course of the interview, Sharples was never told that he could not leave.
[46] Still further, it is apparent that Sharples is an intelligent and articulate man. He understood all of the questions put to him and he clearly wished to provide answers to the questions.
[47] For these reasons, I find that even though Sharples was a suspect and had not been cautioned, Sharples was voluntarily at the police station and voluntarily answered Detective Taylor’s questions. Therefore, except as set out below, I find that the statements given by Sharples in interview number two are admissible at the trial.
[48] The main difficulty with interview number two is the request for a polygraph interview. A person is not required to engage in a polygraph interview, and the fact that a suspect declines a polygraph interview cannot be used against him. Therefore, it is inappropriate for a trier of fact to hear evidence that Sharples refused a polygraph interview.
[49] In the transcript of interview number two, the discussion about a polygraph interview starts at page 20 and is interwoven throughout the remainder of the interview. Therefore, I find that the portion of interview number two from the start of the discussion about a polygraph interview at page 20 of the transcript to the end of the interview is not admissible.
[50] For the same reasons, I find that Sharples statements to police officers made on February 2 and February 3, 2011, are not admissible. Those statements generally deal with Sharples’ reluctance to engage in the polygraph interview. Further, I accept that Sharples felt an obligation to contact Detective Taylor in order to decline the polygraph interview. But for that obligation, Sharples would not have engaged in any conversation with Detective Taylor on February 3, 2011. Therefore, I find that the entire discussion between Detective Taylor and Sharples on February 3, 2011, is not admissible.
[51] I find that the statements made by Sharples to the police officers on September 28, 2011, and October 4, 2011, are admissible as they were clearly made voluntarily. Those brief statements dealt only with a request to provide Shana’s toothbrush for DNA testing. I will allow this evidence to be admitted at the trial.
[52] In summary, regarding voluntariness, I find that Sharples’ statements made to Officers Garisto, Rosborough, Daniels and Scriven are admissible at trial. I also find that Sharples’ statements made to Detective Taylor during interview number one on December 31, 2010, and the statements made on September 28, 2011, and October 4, 2011, are admissible at trial.
[53] Further, I find that Sharples’ statements made to Detective Taylor from the start of interview number two on January 31, 2011, to the commencement of the discussion about a polygraph interview at page 20 of the transcript are admissible, but that the balance of the statements made during interview number two is not admissible. I find that the statements made to Detective Taylor on February 2 and 3, 2011, are not admissible at trial.
THE CHARTER ISSUES
[54] Given my decision regarding voluntariness, I find that there is no need for this Court to consider s.7 of the Charter. If a court finds that the common law voluntariness rule is satisfied, there can be no breach of the accused’s right to remain silent under s. 7 of the Charter because the court has found that the accused has freely exercised his/her choice to speak. That is, if the Crown proves voluntariness at common law beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement.
[55] Further, I find that s.10(b) of the Charter is not engaged in this case as Sharples was not detained by the police officers. I am well aware of the factors to be considered on the issue of detention as discussed in R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794 (OCA), and R. v. Grant, (2009) 2009 SCC 32, 245 C.C.C. (3d) 1 (SCC). With respect to those factors I find that at all times Sharples was free to come and go from the police station; that Sharples did not appear to be shaken or stressed by the police investigation; that there was no physical contact between Sharples and the police officers; that the officers were initially investigating a missing persons case; and that until the second interview the police officers did not ask Sharples any difficult pointed questions.
[56] For these reasons, I find that there was no physical or psychological detention of Sharples by the police officers at any time prior to his arrest in September 2012. Section 10(b) of the Charter is not engaged, and therefore there can be no breach of s.10(b).
CONCLUSION
[57] In summary, I find that there has been no breach of s.7 or s. 10(b) of the Charter. I find that the following statements made by Sharples were made voluntarily and are admissible at trial:
Sharples’ statements to Officers Garisto, Rosborough, Daniels and Scriven;
Sharples’ statements to Detective Taylor during interview number one on December 31, 2010;
Sharples’ statements to Detective Taylor on September 28, 2011, and October 4, 2011; and
Sharples’ statements to Detective Taylor from the start of interview number two on January 31, 2011, to the commencement of the discussion about a polygraph interview at page 20 of the transcript.
[58] I find that the balance of Sharples’ statements to Detective Taylor during interview number two is not admissible. I also find that the statements made to Detective Taylor on February 2 and 3, 2011, are not admissible at trial.
Henderson J.
Released: August 5, 2015
COURT FILE NO.: 38/14
DATE: 2015-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Christopher Lee Sharples
Accused
PRETRIAL MOTION NUMBER #3
ACCUSED’S STATEMENTS TO POLICE OFFICERS
Henderson J.
Released: August 5, 2015