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 18 and 24, 2015
The Honourable Justice J.R. Henderson
PRETRIAL MOTION NUMBER #4
ACCUSED’S STATEMENTS TO FACS WORKERS
INTRODUCTION
[1] At issue in this pretrial motion is the admissibility of statements made by the accused, Christopher Lee Sharples ("Sharples"), to two Family and Children’s Services ("FACS") protection workers, Renée Johnson ("Johnson") and David Gill ("Gill").
[2] On September 27, 2012, Sharples was arrested for the first-degree murder of his common-law spouse, Shana Carter ("Shana"), and he was taken into custody. He was incarcerated at the Niagara Detention Center (“NDC”) on this charge when he made the subject statements to Johnson and Gill on October 16, 2012.
[3] The defence submits that the FACS workers were persons in authority. If so, the defence submits that Sharples’ statements are not admissible as the Crown cannot prove that the statements were made voluntarily. In addition, if this Court finds that the FACS workers were persons in authority, defence counsel alleges breaches of s.7 and s.10(b) of the Canadian Charter of Rights and Freedoms ("the Charter").
[4] It is the Crown's position that the FACS workers were not persons in authority. Therefore, there is no voluntariness issue and Sharples’ statements to the FACS workers are admissible at trial. In the alternative, if the FACS workers were persons in authority, the Crown submits that Sharples’ statements were made voluntarily, and that there has been no breach of the Charter.
SHARPLES’ STATEMENTS TO THE FACS WORKERS
[5] Sharples and Shana had a son, Levaughn, who was five years old as at the date of Sharples’ arrest. Since Shana went missing on approximately December 4, 2010, Levaughn had been cared for by Sharples and by Sharples’ mother, Deborah Sharples (“Deborah”).
[6] When Sharples was arrested, Niagara Regional Police Service (“NRPS”) Officer Thibert contacted the FACS office and provided a FACS supervisor with information about Sharples’ arrest and about Levaughn.
[7] On September 28, 2012, Johnson spoke with Officer Thibert to obtain further information and to obtain some contact details. Johnson then met with Deborah and Levaughn at Deborah's residence. Thereafter, Johnson arranged to interview Sharples at the NDC on October 16, 2012. Johnson was accompanied to the interview by her supervisor, Gill.
[8] Prior to the interview, the FACS workers had determined that Levaughn was in a happy and safe environment in Deborah’s custody at Deborah’s home. Barring something unforeseen, they would not be directing or imposing any alternate childcare arrangements for Levaughn. The interview of Sharples was part of the FACS duty to fully investigate and to inform Sharples.
[9] At the start of the interview, Johnson told Sharples that the FACS workers were there to talk to him in order to ensure that Levaughn’s needs were being met. Then, Johnson cautioned Sharples that if he said something incriminating she would have to share that information with the police.
[10] Sharples was assured by the FACS workers that they were not contemplating removing Levaughn or putting him in a foster home. Then, Johnson, Gill, and Sharples spent some time talking about Levaughn, childcare arrangements, and Sharples’ relationship with Shana.
[11] Johnson then asked Sharples to "shed some light" on what had happened in December 2010 when Shana went missing. Johnson asked if Sharples had made an admission or a confession, and Sharples responded that his lawyer had told him not to say anything. Thereafter, there was a discussion about how Sharples would someday explain his situation to Levaughn; about Shana's suicidal tendencies, and about Levaughn visiting Shana's sister.
[12] As the interview seemed to be drawing to a close, Sharples raised the issue of having access visits with Levaughn if Sharples were to obtain bail. This led to a discussion about a possible plea agreement and a possible quick resolution of the criminal proceeding.
THE LAW
[13] In the case of R. v. Hodgson (1998) 1998 798 (SCC), 2 S.C.R. 449 at para. 32, Cory J. wrote that persons in authority are typically those persons “formally engaged in the arrest, detention, examination or prosecution of the accused”.
[14] Cory J. also found, at paras. 32-34 of the Hodgson decision, that a person other than a police officer or peace officer could be deemed to be a person in authority based on a two-part subjective-object test. Specifically, if the accused believed that the person to whom he was speaking "could influence or control the proceedings against him", and the accused's belief was reasonable in the circumstances, then the recipient of the statement may be deemed to be a person in authority.
[15] Further, at para. 36, Cory J. wrote:
A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority over the accused, is not sufficient to establish them as persons in authority for the purposes of the confessions rule.
[16] As to the onus, the accused has an evidentiary burden of demonstrating that the issue of whether the recipient of the statement is a person in authority is a valid issue for consideration, and if the accused meets that burden, then the onus shifts to the Crown to prove beyond reasonable doubt that the recipient of the statement is not a person in authority. See Hodgson at para. 48.
ANALYSIS
[17] In the present case I find that the accused has not met the evidentiary burden of proving that there is a valid issue for consideration. I find that the FACS workers attended the NDC to interview Sharples as part of their child protection duties. Their concern was Levaughn’s welfare, not the guilt or innocence of Sharples.
[18] The FACS workers had no influence or control over the criminal proceeding. This was not a joint investigation by the police department and the FACS office into Sharples’ possible criminal conduct; the NRPS had already conducted the criminal investigation and had arrested Sharples. Although there had been some contact between the NRPS and the FACS office, that contact was focused on Levaughn’s circumstances.
[19] I find that the officer in charge of the criminal prosecution properly contacted the FACS office because Levaughn had been in the care of Sharples, a single-parent, at the time of his arrest and incarceration. The FACS office became involved in these circumstances because Sharples’ arrest may have had an effect on Levaughn’s welfare.
[20] Further, the FACS workers did not suggest to Sharples that they had any influence or control over the prosecution of the criminal proceeding. Johnson made it clear to Sharples that the FACS workers were speaking to Sharples solely for the purpose of dealing with Levaughn’s needs. The caution that Johnson gave to Sharples that she would have to inform the police officers if he said anything incriminating was, in my view, part of Johnson's explanation to Sharples that she was there to talk about Levaughn, not the criminal charges.
[21] It must also be observed that when Johnson asked Sharples about what had happened in December 2010, it was in the context of dealing with the issue of whether Levaughn had observed any domestic violence between Sharples and Shana.
[22] Finally, all of the evidence suggests that Sharples is an articulate and intelligent man. I find that he understood that the FACS workers were at the NDC to talk to him about Levaughn, and that the FACS workers were not involved in, nor did they have any influence over, the criminal proceeding against him.
[23] For these reasons, on both a subjective and objective basis, I find that the accused has not met the evidentiary burden of proving that the issue of whether the FACS workers were persons in authority is a valid issue for consideration. Thus, I find the FACS workers were not persons in authority in this case, and therefore the voluntariness issue and the Charter issues are not relevant to the admissibility of Sharples’ statements to the FACS workers.
[24] That being said, I find that the discussion between Sharples and the FACS workers with respect to the resolution of the criminal charge and/or a plea agreement should not be admitted into evidence. Resolution discussions are irrelevant to the prosecution of a criminal charge, and it is well-established that the trier of fact should not be informed about any resolution discussions.
[25] Furthermore, interwoven in the discussion about a possible plea agreement is a discussion about bail, bail terms, and Sharples’ criminal record. In my view, all of these matters are also irrelevant to the prosecution of the criminal charge in this case, and could be distracting or confusing issues for the jury. Therefore, I find that the entire discussion with respect to bail, criminal record, and a plea agreement should not be admitted at trial. The inadmissible portion of the interview commences at page 19 of the transcript and continues to the end of the interview.
CONCLUSION
[26] For all of the abovementioned reasons, I find that the FACS workers, Johnson and Gill, were not persons in authority when they interviewed Sharples at the NDC on October 16, 2012. Therefore, there is no issue regarding voluntariness or the Charter.
[27] However, I find that the portion of the interview that deals with bail, Sharples’ criminal record, and a plea agreement is not admissible. Therefore, Sharples’ statements to the FACS workers from the start of the discussion about bail on page 19 of the transcript to the end of the interview are not admissible at trial.
[28] The balance of Sharples’ statements to the FACS workers is admissible.
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 #4
ACCUSED’S STATEMENTS TO FACS WORKERS
Henderson J.
Released: August 5, 2015