R. v. Sharples, 2014 ONCJ 767

Information No. 12 – SD3957 Citation: R. v. Sharples , 2014 ONCJ 767 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - CHRISTOPHER LEE SHARPLES Reasons for Committal Mr. R. Monette and Mr. G. Settimi for the Crown Mr. C. Hicks and Mr. T. Morris for Lee Sharples A non-publication order under s. 539 (1) is in effect. J.S. NADEL, J.: Introduction [ 1 ] Lee Sharples was born on June 26, 1977. He is charged with the first degree murder of Shana Carter, a woman with whom he sometimes lived.

She was born on December 18, 1985 and was about to turn 25 in December of 2010 when she went “missing.” Sharples and Carter had a son, Levaughn Carter, who was not yet four years old in December of 2010. [ 2 ] Based upon the evidence adduced from or through the 38 witnesses called at this preliminary inquiry, the Crown seeks to have Lee Sharples committed to trial on a count of first degree murder. The Crown alleges Lee Sharples planned and deliberated upon the murder of Shana Carter before he carried it out.

The defence resists committal on that count and submits that there is no evidence of either planning or deliberation. In order to appreciate the basis for these contrary submissions a review of some of the evidence tendered must be provided. The Evidence [ 3 ] Sharples told those who asked that Shana Carter disappeared on December 4, 2010, which was a Saturday. He did not initiate any alert to her disappearance. When asked about her whereabouts, he variously said that she went out for a cigarette at 10:00 p.m. or between 10:00 and 10:30 p.m. or between 10:00 and 11:00 p.m. and never came back.

He also told one witness that she left in the afternoon of December 4 th . Normally, their son, Levaughn, would have been at home with them that night but Saturday, December 4, 2010 was the day of a Santa Claus parade. Levaughn had been taken to it by Lee Sharples’ mother and she and Shana agreed to have Levaughn stay over with Sharples’ mother because Shana was not in a good frame of mind that day. [ 4 ] On December 4, 2010, Carter was 24 years old and unmarried. Originally from Halifax, since her late teens she had made her living as a strip-dancer. Early on she also began to prostitute herself.

In addition, (or arguably because of the way she made her way in life,) Carter developed a cocaine dependency. Worse yet, she suffered from psychological issues. Despite all of that she was loved by several people including her older sister, Janine Carter and her co-worker, Bobbi Feener, who stripped at the same club in Brampton, Ontario where Shana had been working in early 2010 . [ 5 ] According to Janine Carter, Levaughn was about three and a half in December of 2010. Christopher Lee Sharples was Levaughn’s father and the three lived together as a family, on occasion.

Most recently, in April or May of 2010 Lee had convinced Shana to move to Grimsby, Ontario and live with him at 4 Arrowhead Lane. [ 6 ] 4 Arrowhead Lane is a semi-detached home and Sharples had lived there for about four years as of December of 2010. He worked for an insulating company and his work took him away from home at times, leaving Shana feeling isolated and lonely, according to her sister. [1] [ 7 ] Two witnesses, Bobbi Feener and Janine Carter, testified to Shana’s circumstances and situation in December of 2010.

Feener last saw Shana in person at some point in November of 2010 but they kept in contact by various social media including text messaging, Facebook and telephoning about twice a week.

[ 8 ] Because Shana was feeling somewhat isolated in Grimsby, she was planning a pot-luck birthday celebration to be held at 4 Arrowhead on the weekend prior to her actual birthday, (which was December 18 th .) Feener was one of the guests coming to that party.

She and Shana discussed it in their various communications leading up to the time of Shana’s disappearance. [ 9 ] Shana’s Facebook message to Feener of November 26, 2010 (Exhibit 8,) read as follows: “tell the truth, lol, does my status sound more like im venting or like im a lil crazy? not sure if i should just delete it. lee can see my status his sick of me anyways. he said he’ll give me money for first and last. he seems like he’ll just let us go!!

I rather him try to get me to stay but he dont love me.” [ 10 ] Feener returned a supportive message to Shana later that day and subsequently, on November 29, 2010, Shana responded in a happier frame of mind, in these words: “wow i haven’t been back on here since then and im reading my msg.lol. I was off, we were having a terrible weekend, but its good now. Thanks for the encouragement B!!! I should really be crying out to god thanking him for being alive and for my family. Its truly a shame what we as humans forget sometines. I hope u guys are well and what are y guys doing for christmas?

Thanks Bobbi xxoo” [ 11 ] According to Feener, Shana was unhappy. At some point not clearly identified by Feener but somewhere in the area of a week before Shana’s disappearance Shana telephoned Feener to announce that she was going to commit suicide. Shana called Feener the next day to apologize and tell Feener that she was not going to take her own life. This may have been the last time they spoke.

Regardless, the last time they spoke was about a week before Shana went missing. [ 12 ] Feener confirmed that she and Shana were friends who shared confidences and Shana complained of being depressed as a result of living with Lee. She also reported being psychologically mistreated by Lee but Shana never complained or alleged that Lee was ever physically violent to her. [ 13 ] Janine Carter testified that Shana moved to Grimsby in late April or early May of 2010 and that she last spoke with Shana about one week before Shana disappeared.

Carter testified that her sister was afflicted with a depressive illness for which she was prescribed medication but that Shana also used illegal street drugs, particularly cocaine. These problems were of a longstanding duration, somewhere in the area of five years. [ 14 ] Janine Carter confirmed Feener’s testimony that Shana was prostituting herself. Janine said that Shana had been an escort (sic) for about seven years.

Carter believed that Shana had both ceased acting as an escort and doing drugs shortly before moving to Grimsby. [ 15 ] Like Feener, Janine kept in contact with Shana by telephone a few times a week, along with texting her and communicating by Facebook. According to Janine, while Shana was happy to be living as a family, she was depressed about being stuck at home without friends and transportation as Lee worked a lot and was often away.

Janine confirmed that Shana was excited about her plans for a pot- luck birthday celebration. [ 16 ] While her actual birthday was December 18, Shana explained to her friend and sister that December 18 was too close to Christmas so the plan was to have the party on the Saturday prior to the 18 th , which, according to the 2012 calendar was Saturday, December 11, 2010. The last time Janine spoke to Shana was “a few days prior to her disappearance”. Carter said that Shana was not on Facebook during that period and that was unusual for her as she was usually logged on all day long.

The Date of Shana Carter’s “Disappearance” [ 17 ] Janine Carter called Lee Sharples on the 11 th of December of 2010, about one week after she had last heard from Shana. Sharples told her that Shana had been with him in Grimsby but that he had not seen her since December 4, 2010. He said that they had been watching the television when Shana went out for a smoke and did not come back. [ 18 ] He told Janine that he went out to look for Shana but there was no trace of her. He said that when she left she had been wearing a black track suit.

He also said that on the prior day he had given her money for a deposit to obtain a place of her own and that he speculated that maybe she had gone to do drugs. Initially he told Janine that Levaughn was home when Shana left but when she spoke with him again some days later he said that Levaughn had not been home and had been at his mother’s house. [ 19 ] Janine asked Sharples if he had called the police and he said that he had. This was not true.

She then arranged with him to call the Peel Police that night using a “three-way” call to avoid distressing Levaughn, who was awake and could hear his father’s side of that call. [ 20 ] Janine agreed that Lee loved his son and was a good father to him. She said that when Shana was living in bad circumstances in the basement apartment of a drug dealer who doubled as Levaughn’s baby-sitter/care-giver she had urged Shana to reconcile with Sharples and move away from Brampton and its influences upon her.

The Investigation The Missing Person Inquiries [ 21 ] As a result of Janine’s call to the Peel Regional Police, P.C. Garisto contacted the Niagara Regional Police to have them make missing person inquiries into the disappearance of Shana Carter. On December 12, 2010, P.C. Martyn Rosborough was directed to follow up on Janine Carter’s complaint at the request of P.C. Garisto. Officer Rosborough had been advised that the Peel Police had

received a report that Shana Carter had been reported missing the prior day; i.e., December 11, 2010. Rosborough was detailed to follow up on that report. [ 22 ] Rosborough went to 4 Arrowhead Lane at 8:51 a.m. on December 12 th and spoke to Sharples. Sharples told Rosborough that he had last seen Shana at about two o’clock on December 4, 2010. He said that they were separating on good terms so that he did not feel the need to report her missing. [ 23 ] On December 11, 2010, P.C. Garisto called and spoke to Sharples.

Sharples told Garisto, among other things, that Shana was possibly suicidal, that he last saw her between 10:00 and 11:00 p.m. on December 4, 2010. He said that she had been speaking of going to visit an ex-boyfriend and that she had been very upset for the past month. One of the things they argued about was her refusal to take her medications for her anxiety and depression. Sharples told Garisto that he did not call the police when she disappeared because he was not concerned about her whereabouts. [ 24 ] P.C.

Michael Daniels, of the Niagara Regional Police Service, was directed to follow up on the missing person complaint on December 14, 2010. Daniels knocked on Sharples’ door at 8:29 a.m. No one answered but Daniels had occasion to speak to Sylvia Battersby, the resident of 6 Arrowhead Lane. She told Daniels that the last time she saw Shana Carter was at about 6:00 p.m. on Friday, December 3, standing in the driveway near Sharples’ vehicle. Battersby said everything seemed normal that night.

She also told Daniels that Shana Carter had moved in about four or five months earlier and that Sharples had lived there for about three years. Daniels retired to his cruiser to note up his inquiries. [ 25 ] At 9:19 a.m. Daniels called Sharples and left a message asking him to return Daniels’ call ASAP . He was still writing up his notes at 10:40 a.m. when he saw a car pull into 4 Arrowhead. He investigated and learned that the driver was Gary Johnston, a friend of Sharples.

Johnston said he was checking on the residence at Sharples’ request because they worked together and Sharples was working in Barrie, Ontario. [ 26 ] At. 10:57 a.m. Daniels received a call from Sharples. He told Daniels that he had last seen Shana at about 10:30 p.m. on Saturday, December 4, 2010 and that he had no idea where she was. He theorized that she may have run off with her old pimp. He also told Daniels that Shana had ties to Calgary, Nova Scotia and Brampton. Daniels asked if he could look around the house and Sharples said that he could once he returned from Barrie later that afternoon.

He told Daniels that he would call him when he returned from work. Daniels booked off duty before any call came and it does not appear that he made arrangements with any other officer to follow up on the “look around” request. [ 27 ] On December 23, 2010, Sgt. Scriven of the Niagara Regional Police Service took a call from Bobbi Feener about her friend being missing. As a result, he interviewed Lee Sharples in order to complete a missing person’s questionnaire, which was filed as Exhibit 18.

While there are some aspects of Sharples’ answers that seem odd, (for example, he did not mention giving Shana money for first and last months’ rent and he said that Shana was working at a hotel in Burlington, Ontario, which is the first mention of Shana Carter “working” while living in Grimsby,) he was, in Scriven’s view, fully cooperative. General and Search Warrants [ 28 ] Not surprisingly, the police suspected Sharples of being involved in the disappearance of his live-in girlfriend, Shana Carter. Two surreptitious entries into his home and one into his garden shed were authorized under General Warrants.

In September of 2012 the police determined that they intended to arrest Mr. Sharples for the murder of Shana Carter. They obtained a search warrant that provided for it to be executed over a considerable period of time and that allowed for some destruction of the interior of the home during the search for evidence. The Discovery of Shana Carter’s Skeleton [ 29 ] On September 21, 2012, Derek Taylor, a hydro lineman, was hunting for partridge with his 16-year-old son off Smith Bay Road, north of Parry Sound. Smith Bay Road dead-ends coming off Highway 522. The Taylors had separated to flush birds.

They were about 20 yards apart in an area of woods that was dense enough that they could not see each other even at that short range. Taylor’s son called to him about a discovery. It was the skeleton of a person. There was no cell phone reception at that spot so the father and son left to contact the authorities. They eventually came upon a Ministry of Natural Resources Officer who contacted the police. [ 30 ] In the days that followed the skeleton was examined and photographed in the condition in which it was found and then removed for expert examination by a forensic anthropologist, Dr. K.L.

Gruspier and a forensic pathologist, Dr. M. Pollanen. Subsequent DNA testing confirmed that these were the remains of Shana Carter. [ 31 ] Shana Carter’s remains were well hidden. They were in a relatively remote area well off the travelled portion of the roadbed of Smith Bay Road, which, as noted above, is a “dead-end” road. It only leads to some cottages and a boat launch. Significantly, Smith Bay Road was an area of Northern Ontario that Lee Sharples was very familiar with.

Bonnie Cushnie, the proprietress of a fishing camp that is reached via the boat launch near the dead-end of Smith Bay Road, testified that Lee Sharples and members of his family had vacationed at her fishing camp for many, many summers including and prior to 2010. The Post-Mortem Examinations [ 32 ] Dr. Gruspier was not qualified to offer the expert opinion that Shana Carter’s remains had been hidden by being covered with branches. Still, one need not be an expert to note that the photographs taken of her skeleton show more than one branch or limb over the skeleton.

In any event, it is clear that her body was secreted. Dr. Gruspier examined Shana’s remains the day after they were discovered. Based on an examination of those skeletal remains, she concluded that these were very likely the bones of a Negro female.

She then looked at the roster of missing women and learned that Shana Carter was listed. A dental comparison confirmed that these were Shana Carter’s bones and ultimately a DNA comparison, (using hair taken from Shana Carter’s hair brush supplied by Sharples,) also confirmed the identification of her remains. [ 33 ] Dr. Gruspier testified that Shana Carter’s skull was fractured in four separate places by a shaped tool that could have been a hammer.

She was not determine the order of the blows or whether the same instrument was used on each occasion or which blow or blows caused Shana Carter’s death. [ 34 ] What Dr. Gruspier could say with certainty is that there was no evidence of dismemberment to Shana Carter’s skeleton. While portions of the skeleton were missing that was due to animal predation and not to any human intervention. [ 35 ] Dr. Pollanen conducted his own independent examination of Shana Carter’s skeletal remains, with particular emphasis on the skull.

In his opinion, the four skull fractures that he identified were caused by four separate blows made by a rounded object, the striking surface of which was convex or flat. Of the four fracture sites, the one above the left eye socket was likely the blow that landed with the most force. He described the amount of force required to cause that fracture damage as being significant or considerable. His ability to offer medical opinions in this case was limited by the lack of a complete and freshly dead body containing tissues and organs.

Based solely upon his examination of these remains he was not able to say that these fractures occurred while Shana Carter was alive. One final noteworthy opinion of his was that scalp injuries tend to bleed profusely. That is significant because of the C.F.S. evidence. The C.F.S. Evidence [ 36 ] Ms. M. Popovic, a forensic biologist, testified and her report was also exhibited, on consent.

She identified a series of spots of blood-staining, by blood from Shana Carter that begins at the stairs in the foyer or front hall of 4 Arrowhead Lane and descends through the woodwork and structural supports of the home into the basement. From this evidence a jury could infer that a pool of Shana Carter’s blood was released onto the floor at the bottom of the foyer steps and leaked downward by the pull of gravity through the woodwork and into the basement, along what Ms. Popovic describe as “a confined vertical space.” Ms.

Popovic was able to take the samples that she analyzed, despite the surface of the areas that she sampled having been repaired or reconstructed to hide the prior presence of the deceased’s blood. December Repairs and Time Off Work [ 37 ] The handy-man who refurbished 4 Arrowhead Lane before Lee Sharples purchased it testified to the condition of the moulding in various spots in the house, particularly the moulding near the base of the first step and riser of the staircase in the foyer or front hall. He said that it was not his handy-work.

Photographs of that spot show obviously non-expert carpentry and paint work. Moreover, Sharples’ across the street neighbour of that time, who lived at 5 Arrowhead Lane, recalled seeing that work was being done at 4 Arrowhead Lane. An older man in his 50’s driving an older truck or van was there for about one week in December of 2010. The neighbour, (Ms. Hoar,) testified, inter alia , that this occurred during the second week of December of 2010. The workman was using the garage and leaving the garage door open in the evenings in the cold of December.

She found this odd and therefore recalled the matter when questioned by police some time later. A further thread of circumstantial evidence that ties into the tapestry of the Crown’s case is Sharples’ employment record from ProInsul. Those records disclosed that Sharples took a week off work in December, after the 4 th . This is at approximately the same time period when he was having work, including dry-walling, done to his home. Sharples’ bank records show that he spent several hundreds of dollars in December of 2010 at places where building supplies and equipment are sold.

While he was not shown to have purchased it, a can of paint, containing a neutral colour, apparently consistent with the colour of his foyer, was found in his basement and proved to have been purchased on December 6, 2010 . Phone Records [ 38 ] The call histories of the cell phones assigned to or used by Lee Sharples and Shana Carter were entered. Neither the Crown nor the defence pointed to them in any substantial way during their respective submissions, written or oral. There is, however, one inference that is available to be drawn.

If, as is open to the jury, they find that Lee Sharples killed Shana Carter at 4 Arrowhead Lane during the evening of December 4, 2010, then she would be unavailable to answer her cell phone. Yet Exhibit 29 E, the raw cellphone data exhibit, shows that her phone received two calls that were answered by an individual, as opposed to going to voice mail, on December 5, 2010. The first call, at 12:15:55 a.m. lasted for six seconds. The next call, at 10:16:05 a.m. lasted for 18 seconds. Both calls were made from Lee Sharples’ cell phone to Shana Carter’s cell phone.

As noted subsequently, this is a piece of evidence from which a jury may infer a plan by Sharples to attempt to cover up her death after the fact , at a minimum. Statement to Co-Workers [ 39 ] Several men who worked with Lee Sharples were called. Inter alia , they testified as follows: • Steve Cairns testified that in the summer of 2010 Mr. Sharples bragged to a number of co-workers that he hurt his thumbs while trying to choke his girlfriend, (who he had described as a “dancer;”) • Glen Campbell testified that in the summer of 2010 he heard Mr.

Sharples say that he dislocated his thumbs trying to “choke out” his girlfriend; • Adam Wells testified that Mr. Sharples said that his girlfriend was moving in and that they did not get along well and that they argued;

• Philip Larson testified that Mr. Sharples said that an easy way to get rid of his girlfriend, (who Larson knew as Shana,) would be totake her up on the escarpment where she liked to walk and Sharples could push her off; • Gary Johnston testified that Mr. Sharples told him that he had grabbed Shana Carter by the neck and forced her up against a wall. The Undercover Operation [40] An undercover officer, (the U/C,) made contact with a friend of Lee Sharples. Sharples’ friend was a physical trainer andbasketball enthusiast.

The U/C operative was introduced to the accused and they became friends and played together on the same team ina basketball league. The U/C adopted a cover story that was designed to mirror aspects of the accused’s situation as understood by thepolice; viz that he had a child essentially the same age as Mr. Sharples’ son; that he had a girlfriend that he was not happily involvedwith; that his girlfriend had psychological issues; and that he would like to be rid of his girlfriend.

The U/C said he could not simplyleave her because she knew prejudicial things about him, which, if disclosed, could cause him to be jailed for a substantial period oftime. [41] The U/C was body packed and recorded several conversations with Mr. Sharples, which occurred on various dates long after he killed Shana Carter.[2] Nonetheless, despite having made these statements months after he killed Shana Carter, the Crown submits thatthe statements provide evidence that his killing of Shana Carter amounted to a planned and deliberate murder, when viewed against thebackdrop of the killing.

Rather than providing these statements here and then repeating them subsequently, I shall identify them as Ireview the Crown’s written submissions on committal. The Law on Committal [42] In R. v. Turner, 2012 ONCA 570 , [2012] O.J. No. 4088 (C.A.), Armstrong J.A. collated the salient discussions of thetest for committal at paragraphs [15] to [17].

Those principles require a “justice" to commit an accused person for trial in any case inwhich there is admissible evidence which could, if it were believed, result in a conviction, provided the evidence is sufficient to sustain averdict of guilt beyond a reasonable doubt.

Where there is no direct evidence of a necessary fact the preliminary hearing judge mustengage in a limited weighing of the circumstantial evidence to determine whether the elements of the offence may reasonably be inferredfrom the circumstantial evidence, i.e., the judge assesses whether it is reasonably capable of supporting the inferences that the Crownwill ask the jury to draw. “This weighing, however, is limited. The judge does not ask whether she herself would conclude that theaccused is guilty. Nor does the judge draw factual inferences or assess credibility.

The judge asks only whether the evidence, if believed,could reasonably support an inference of guilt.” As noted by the Court of Appeal in R. v. Hawley, 2012 ONCA 528, at paragraph [10] “ifthe inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge mustcommit for trial even if those are not the inferences that the preliminary inquiry judge would draw.” Selecting inferences that favour theaccused over other available inferences that support the Crown’s theory constitutes error. (See R. v.

Masterson, 2008 ONCA 481 at[10]) Put otherwise, a preliminary hearing judge commits jurisdictional error by weighing competing inferences. (See R. v. Quinn, 2008ONCA 642 at [3] and R. v. D.M., 2008 ONCA 69 at [5]) Inference Distinguished From Speculation [43] There is a considerable difference between inference and speculation.

Speculation is the process of forming a theory or conjecture without a factual basis.[3] Canadian jurisprudence is replete with cautions against confusing a reasonable inference with mere speculation.[4] “The process of drawing inferences from evidence is not … the same as speculating even where the circumstances permitan educated guess. …The trier of fact will assess [the] evidence in the light of common sense and human experience, but neither are a substitute for evidence.”[5] “Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for areasonably drawn inference.

Therefore, it is not enough simply to create a hypothetical narrative … Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence.”[6] Speculation or conjecture can be distinguished from the process of inference “by which a fact or proposition sought to be established is deduced as a logical consequence from other facts or a state of facts already proved or admitted.”[7] “A trier of fact may draw factualinferences from the evidence.

The inferences must, however, be ones which can be reasonably and logically drawn from a fact or groupof facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be madeand is condemned as conjecture and speculation.”[8] Some Aspects of the Law Respecting Drawing Inferences [44] Simply because an inference may be difficult or intricate does not mean that it cannot be drawn. (R. v. Katwaru (2001), (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.).) Moreover, “[r]easonable inferences are not necessarily likely or probableinferences.

The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences todraw may still nonetheless be reasonable.” (See R. v. Dwyer, 2013 ONCA 368 at [4].) As noted above at paragraph [42] if theinferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge mustcommit for trial even if those are not the inferences that the preliminary inquiry judge would draw. THE ELEMENTS OF THE OFFENCE Murder

[45] The defence quite properly concedes that there must be a committal for second degree murder. “[I]n a murder prosecution, theCrown must adduce sufficient evidence on the issues of identity, causation, the death of the victim and the requisite mental state.” (SeeR. v. Charemski (1998), (ON SC), 13 C.C.C. (3d) 225 (S.C.C.) at [5]) All of these matters are conceded to besufficiently proved by the evidence called at this preliminary inquiry.

Despite that concession, since the intention to kill is quite distinctfrom the concepts of planning or from deliberation, a brief comment on proof of an intention to kill may not be out of place. Inferring the Intention to Kill [46] As there is no direct evidence of the accused’s intentions in mounting his attack by way of a discrete announcement of thoseintentions, the court is required to engage in a limited weighing of the whole of the evidence to determine whether a reasonable juryproperly instructed could infer that the accused had the specific intention to kill from the available circumstantial evidence.

Thatinference is readily available. Accordingly, absent a direct expression of intention, the mental element of murder - namely: the intentionto kill - may be inferred from the totality of the facts, including the nature of the weapon, the extent of its use, the manner in which it isused on the victim, the area of the victim’s body that is attacked, the results of the attack and any other surrounding circumstances thatmay form strands in the process of inference leading to a conclusion on the question of intention. (See R. v. Bains, [1985] O.J. No. 41(Ont. C.A.) and R. v. Rajanaygam, [2001] O.J.

No. 393 (SCO).) First Degree Murder[9] [47] Section 231 (2) of the Code provides that murder is first degree murder when it is planned and deliberate. To prove that LeeSharples’ murder of Shana Carter was first degree murder, the Crown must prove beyond a reasonable doubt not only that Lee Sharplesmurdered Shana Carter but also that the murder was both planned and deliberate. It is the murder itself that must be both planned anddeliberate, not something else that Lee Sharples did or said. The questions to be answered are whether a properly instructed jury actingwith reason could find (

i) that Lee Sharples’ murder of Shana Carter was a planned murder and (ii) whether Lee Sharples deliberatedupon the murder of Shana Carter before the killing. [48] While Mr. Sharples made a variety of statements that arguably bear on at least one and perhaps both of these issues, there is notimely direct evidence on these issues. Accordingly, the questions must be answered by a consideration of the inferences available.

Ifthe evidence permits a jury to infer that Lee Sharples’ murder of Shana Carter was both planned and deliberate then he must becommitted for trial on first degree murder, provided that the evidence, if believed, is sufficient to sustain a verdict of guilt beyond areasonable doubt. [49] To reiterate, when there is no direct evidence of planning or no direct evidence of deliberation, the preliminary hearing judgemust engage in a limited weighing of the circumstantial evidence to determine whether the elements of the offence may reasonably beinferred from the available circumstantial evidence.

The question to be answered is whether it can be said that the evidence isreasonably capable of supporting the inferences that the Crown will ask the jury to draw. As noted earlier, “[t]his weighing, however, islimited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factualinferences or assess credibility.

The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.” Ifthe inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge mustcommit for trial even if those are not the inferences that the preliminary inquiry judge would draw. (See Hawley, supra at [42]) Planned [50] “Planned” means a calculated scheme or design that has been carefully thought out. The consequences of it have been thoughtover and sized up. The plan does not have to be complicated, nor sensible.

It may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or how little time it took between developing it and carrying itout. [51] A planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed. It isthe implementation of that scheme or design. A murder committed on sudden impulse and without prior consideration, even with anintention to kill is not a planned murder.

Deliberate [52] Deliberate means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, cautious”. Adeliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place beforethe murder starts. A murder committed on sudden impulse and without prior consideration, even with an intention to kill is not adeliberate murder.

The Written Submissions of the Crown Motive [53] The Crown submits that Lee Sharples was motivated to kill Shana Carter to protect their son, Levaughn, from the danger that hebelieved his mother presented to him.

He told the U/C that she was a danger to their son; viz “…that’s what fucked me right up man islike … is that she … she used to say all the time I’ll do something (unintelligible) my kid and … yeah I couldn’t live with myself ifsomethin’ happened to my kid …” Sharples went on to say that “it’s hard to do but you gotta think too what’s the alternative you gethome one day and your fucking kid is dead” and that thought “scared the shit out of me.” [54] In the Crown’s submission Sharples’ fears were magnified by the possibility that Shana Carter would soon be leaving his homewith their son.

The evidentiary basis for this inference is set out at paragraphs [10] through [13] inclusive of the Crown’s writtensubmissions.[10] That possibility that Shana Carter would soon be leaving home with Levaughn is an inference that is tenable and musttherefore be considered.

Animus [55] Lee Sharples denigrated Shana Carter to the U/C, describing her in an insulting and grossly indecent manner. In addition, hisstatements to co-workers outlined at paragraph [39] also demonstrate his animus towards her, as does Shana Carter’s text about the stateof their relationship quoted at paragraph [9]. The Crown’s Written Submissions on Planning [56] The Crown submits that the evidence adduced reasonably affords drawing the inference that Lee Sharples “planned” to kill ShanaCarter.

In the Crown’s submission evidence that Lee Sharples planned this murder can be found in the following strands of testimony: • He admitted to co-workers that he manually tried to strangle Shana; • The medical/anthropological evidence demonstrates four skull fractures caused by the application of substantial force with ahammer-like object; • He admitted to a friend and co-worker that he had grabbed Shana Carter by the neck and forced her up against a wall; • Shana Carter told Destiny Downey that during an argument in the kitchen at 4 Arrowhead Lane Lee Sharples had thrown herdown onto the floor; • Sharples discussed manual strangulation with the U/C (and described how hard it was to carry out). [57] The Crown submits that “it is open to a jury to infer that Mr.

Sharples may (sic) have been unsuccessful in his attempt tomanually strangle Shana Carter and that he was forced to use a hammer-like instrument on her skull.” (emphasis added) With respect,my view is that this supposition of a failed attempt at manual strangulation is, at best, speculation or conjecture. (See R. v. Walker, (ON CA), [1994] O.J. No. 827 (C.A.).) [58] I arrive at that view for a number of reasons. First, the physical and skeletal evidence does not admit of such a conclusion beingreasonably inferred.

Since no soft tissues were left by the time Shana Carter’s remains were discovered neither expert was able to offeran opinion on cause of death other than that Shana Carter’s head had been bashed-in in four spots. Second, no C.F.S. or evidence fromany other source permits such an “inference” to be drawn. Third, the accused made no admission that he tried to kill Shana Carter bymanual strangulation without success and therefore resorted to hammering her to death.

While at some substantial period of time earlierin the year – some witnesses thought it was during the summer – the accused told co-workers that he tried to choke Shana Carter, there isno timely evidence of any similar admission dating from anywhere near December of 2010. In these circumstances, I reject thesubmission that the particular scenario submitted by the Crown, (of a manual but failed strangulation requiring a subsequentbludgeoning,) is a matter within the field of inferences that could reasonably be drawn on the evidence adduced.

The Crown Submission that Timing Evinces Planning and Deliberation[11] [59] The U/C persistently attempted to engage Lee Sharples in the hope that he would make admissions to support the police theorythat he had killed Shana Carter. In one of those attempts the U/C said that he would feel better once he had murdered his girlfriend.

When he went on to tell Sharples that he was thinking about choking his girlfriend, (by implication to death,) Sharples said “you gottaget the kid somewhere right” … “you gotta have the kid at your mom’s …” [60] The Crown’s position is that that advice echoes what Sharples did; i.e., he took advantage of his son’s absence to murder ShanaCarter. The Crown cannot suggest that Sharples had anything to do with his son being absent on the night Shana Carter went missing. There is no evidence to suggest Levaughn’s absence from home on December 4, 2010 was part of a plan devised by the accused.

TheCrown, however, submits that Sharples used the unplanned opportunity afforded by Levaughn’s absence to execute what the Crownurges was a planned and deliberate murder of Shana Carter. The Crown Submission that Hiding the Body Evinces Planning and Deliberation [61] During an intercepted conversation with the U/C Lee Sharples gave him advice on the disposal of his girlfriend’s body, shouldthe U/C carry out her murder. Mr. Sharples said, “… the other way to do it is to fuckin just take it somewhere and then bears could findit …”.

He went on to say that “that’s the way to do it … for the body never to be found again.” Once again, the Crown submits that thisadvice was based on Sharples’ own experience; that because Shana Carter’s remains were skeletonized when found hidden in the woods,a jury could “reverse engineer” the hiding of her remains to infer that this location was part of a planned and deliberated upon murder.

The Crown’s theory of the case is that these pieces of after-the-fact evidence permit the inference that Lee Sharples planned how, whereand when to murder Shana Carter and that he also planned a method of disposing of her body that was designed to preclude it from everbeing found. The Police Theory of Dismemberment [62] Apparently because Mr.

Sharples had a variety of tools including saws and saw blades, because Shana Carter’s body was notfound despite having gone “missing” for well over a year and because three modest areas of damage to the acrylic tub-surround in hishome might have been saw marks, the police conjectured that Mr. Sharples killed Shana Carter and then dismembered her and hid thepieces of her body. As a result of this theory the U/C in the course of his “conversations” with Sharples returned to the subject ofdismemberment and engaged Sharples in discussions of that topic.

In its written submissions, the Crown suggests that his willingness toengage in this kind of hypothetical discussion and to offer the U/C advice about the gore, the effort and the difficulty of disposal derivedfrom such

an act is a thread of evidence, which taken together with the other evidence outlined previously, assists in inferring that hiskilling of Shana Carter was a planned and deliberate murder. In my view, the weight to be attached to this portion of the Crown’s case is

negligible and can make no weight on the issue of committal despite my obligation to consider the evidence as a whole. [ 63 ] I come to that conclusion for a number of reasons. First, relevance is determined by the issue at hand and there is no evidence, not even a scintilla, that Shana Carter was dismembered. So, this issue is not relevant to her killing, which is the basis of the charge of murder. Second, but flowing from the first point, a dismemberment scenario does not track the known facts in the case against Sharples so that no “echoing” submission is available to be advanced to a jury.

Third, Sharples’ “advice” is demonstrated by the intercepts to be the product of information that he derived from watching Crime Scene Investigation-type television and not from a subtle but unattributed reference to his own past actions. Fourth, as a result of the foregoing points, this evidence is only probative of bad character and presumptively inadmissible at trial. [12] [13] The Submission that Cleanup and Renovation Evinces Planning and Deliberation [ 64 ] In the course of his advice to the U/C about how to avoid detection once the U/C had killed his girlfriend, Mr.

Sharples suggested that “you can use paint too right” … “…clean it all up good and then just repaint it” … “go right over it with another coat.” Here, too, as noted previously, the Crown submits that this advice echoes Sharples’ past behaviour. The Crown’s submission is that while Mr. Sharples did not formally attribute this advice to being a product of his prior experience, a jury could reasonably infer that the accused was being coy and subtlety referring to his own repainting of his foyer to avoid detection for the murder of Shana Carter.

Equally, the Crown submits by necessary implication the repainting, redecorating and repair efforts [14] are circumstantial evidence demonstrating foresight and planning. Since he behaved this way after the killing, the Crown will invite the jury to infer that his mental capacities were equally acute prior to the killing and that on the totality of the evidence they could infer that his killing of Shana Carter was a planned and deliberate murder. The Submission that Sharples’ Subterfuge Evinces Planning and Deliberation [ 65 ] The Crown submits that Mr.

Sharples “discussed a number of strategies to assist the U/C in taking steps to conceal the murder that the U/C said he was contemplating and cautioned the U/C about doing anything spontaneous; viz “you’re not gonna do nothing spontaneous right” … “spontaneous shit will get you … spontaneous shit puts you in the fucking slammer forever”.

Once again, the Crown submits that this warning against spontaneity in the commission of a murder is evidence that a jury could view as another unattributed echoing of his own prior behaviour and as such this advice is evidence from which the further inference could be drawn that his killing of Shana Carter was a planned and deliberate murder. [ 66 ] The Crown goes on to identify the following strands of evidence that demonstrate after-the-fact conduct that is circumstantial evidence of before-the-fact planning and deliberation: • Statements made by Sharples to police that were designed to suggest Shana Carter had either run away or committed suicide as set out in paragraph [47] of the Crown’s written submissions; • Statements made by Sharples to Shana Carter’s family that Shana must be out doing drugs as an explanation for her disappearance; • Statements made by Sharples to the U/C “echoing” the kind of statements that he had made to the police, as noted in the first bulleted point; • Statements made by Sharples to the U/C suggesting that the U/C leave a trail of false messages anticipating his girlfriend’s “disappearance”. [15] [ 67 ] The Crown, at paragraph [51] of its written submissions, appears to be contending that a “suicide” text was somehow fabricated by the accused during Shana Carter’s ongoing text messaging conversation with the accused’s mother.

That submission is untenable. There was no evidence called at this preliminary inquiry to permit a finding that Lee Sharples had access to Shana Carter’s phone to send this “suicide” text at that time of the day, on December 4, 2010. Moreover, given Shana Carter’s prior voiced contemplation of suicide, the submission made by the Crown at paragraph [51] is pure speculation without any evidentiary foundation. It is not a submission within the field of inferences that could reasonably be drawn. The Crown’s

Summary Written Submission [ 68 ] Under various headings, the Crown concluded its written submissions by seeking an order committing Lee Sharples to stand trial on the count of first degree murder charged against him based upon the combined effect of the following items: • The evidence of planning and deliberation previously identified; • the evidence of animus exhibited by the accused toward the deceased by both word and deed; and, • the deceased’s comments about the state of her relationship with the accused.

In brief compass, the Crown submits that a jury “could” find Lee Sharples guilty of first degree murder on this evidence and hence the court is obliged to commit on that count, notwithstanding the court’s view of the evidence, should it not accord with the Crown’s position. The Written Submissions of the Defence [ 69 ] The defence filed helpful and complete written submissions on the applicable law. Those submissions contain precise

annotations of the law applicable to the issues raised by the Crown’s request for a committal on first degree murder, (including the jurisprudence that forms the basis for the draft jury charge explanations set out above at paragraphs [51] to [53]). [ 70 ] The defence submits that there is no “evidence” upon which an inference of deliberation can be formed. The defence submits that a fact-finder would have to resort to impermissible speculation or conjecture to conclude that the killing of Shana Carter was deliberated upon by Lee Sharples.

Regardless of the court’s conclusion on the presence of deliberation, the defence insists that there is no “evidence” of planning whatsoever. Since both the deliberation and the planning must both occur before an intentional killing can amount to a first degree murder, the defence submits that a committal on first degree murder would be an erroneous decision, on the evidence adduced. Hence, the defence submits that a committal on second degree murder is the appropriate order to make. The Crown’s Oral Submissions [ 71 ] The Crown was content to rely upon its written submissions.

When pressed to articulate the “plan” that it alleges Mr. Sharples carried out, Mr. Monette stated, (or implied,) that it had the following components: • Mr.

Sharples had formed a settled intention to kill Shana Carter; • he had been deliberating about doing so for a considerable period of time in order to protect their son from her unpredictable behaviour; • he planned to kill her when his son Levaughn was not present; • the opportunity to carry out his plan arose fortuitously on December 4, 2010 when his mother elected to keep Levaughn overnight after taking him to the Santa Claus parade; • his plan was to strangle Shana Carter to death using his hands, as he had tried to do on an earlier occasion without success when he had hurt his thumbs in the attempt; • he was unable to kill her by manual strangulation so he elected to complete the act by bashing in her head with a hammer or hammer-like object, which had messy consequences he had to clean up and cover up; • having completed the murder he took several steps to avoid being apprehended for doing so; • some of these steps he planned for from the beginning; • he had to carry out other steps as a consequence of the bloodletting that attended the murder; • first, he planned not to alert anyone to the fact that Shana Carter was dead and thereby buy himself time to carry out the many other steps required to avoid detection; • those steps included using Shana Carter’s past history of drug addiction and prostitution to explain her going “missing”; • those steps included making two calls to Shana Carter’s cell phone which he then answered in order to leave a record that showed that she was alive and able to answer those calls on December 5, 2010 after she went out for a smoke and took off; • those step included spreading the suggestion that she had walked out with rent money that he had given her, which he then suggested she must have used on drugs and by suggesting that she had returned to join a man who used to be her pimp in some city far away; • those steps included hiding her body in the bush of Northern Ontario in the hope that it would be devoured by bears and never found so that his ploy of professing that she had gone missing could never be authoritatively contradicted; • those steps included cleaning up the gore that he caused in murdering her by cleaning the bloodstains through the use of cleaning products and repainting the walls and the woodwork and re-tiling the floor where Shana Carter’s blood had been splattered or pooled. [ 72 ] In making these foregoing submissions, (either expressly or by implication,) Mr.

Monette stressed that the law does not require that the plan be sophisticated. The Crown submitted that a jury would be entitled to infer all of the foregoing bulleted points and that it would not be unreasonable for them to do so. [ 73 ] When challenged on the fact that creating a drastically messy murder scene seems inconsistent with “planning” a murder with the intention to escape prosecution – which must be part of the Crown’s theory – the Crown maintained the jury could infer that the plan was to kill by strangulation but that based upon comments that Mr.

Sharples made to the U/C he came to realize that manual strangulation was much more difficult than he had anticipated. Mr. Monette contends that the comments made by the accused to the U/C about the difficulty of strangling someone to death was the accused speaking from experience and when that plan failed he improvised and used some object on her skull to complete the act of killing. [ 74 ] In the Crown’s submission, Mr.

Sharples’ comments and advice to the U/C about the need for planning and the avoidance of doing anything spontaneously, about the difficulty of manual strangulation, about the need to take care in hiding or disposing of a body, and about the laying of false trails are all matters that “confirm” (sic) Sharples’ actions against Shana Carter. I take that submission to mean that these comments and advice to the U/C are facts from which a jury could infer that Mr.

Sharples’ killing of Shana Carter was a planned and deliberate murder in that he was drawing on his own past planning and deliberation to offer that advice. [ 75 ] When asked about the absence of physical evidence, to support the Crown’s theory of a failed manual strangulation leading to a

bludgeoning, the Crown submitted that the removal and hiding of the body permitted that scenario to be inferred, (presumably on thebasis that hiding the body would prevent its examination that might disclose the failed attempt at strangulation.) In any event, the Crownrelies upon Mr. Sharples’ past admission or admissions of having attempted to choke Shana Carter as some evidence from which theCrown’s theory could be reasonably inferred by a jury. The Defence’s Oral Submissions The Defence Submissions on Deliberation [76] In Mr.

Hicks’ submission there is no evidence of deliberation nor is there any evidence from which a jury could draw aninference of deliberation. His submission is that the “push off a cliff” evidence is too divorced in time from December 2010 and too“conjectural” given the circumstances in which it was said to be uttered. Mr. Hicks urges that given the circumstances (viz a bunch ofguys sitting around a lunch meal being “macho”) and without any further context the uttered words are an inadequate source from whichto draw any reasonable inferences. In Mr.

Hicks submission a judge could not allow a jury to draw an inference of deliberation from thatcomment. He urges that there is no other sufficient basis on the evidence to ground an inference that Mr. Sharples deliberated upon themurder of Shana Carter prior to December of 2010. I disagree. [77] There are two pieces of evidence from which a jury acting reasonably on proper instructions could find beyond a reasonabledoubt that he had done so.

First, Philip Larson testified that Lee Sharples told him that an easy way to get rid of Shana would be to takeher up on the escarpment where she liked to walk and push her off from there. That statement is a clear example of deliberation. Thedefinition of deliberation recommended to be given to juries is “considered, not impulsive”, “carefully thought out, not hasty or rash”,“slow in deciding, cautious”. A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. Themental calculus must take place before the murder starts.

In my view Philip Larson’s testimony is evidence of all of this. [78] This plan, designed by Mr. Sharples, to kill Shana Carter is a carefully thought out and considered plan. It takes into account arepeatable feature of Shana Charter’s behaviour – that she liked to go for walks along the escarpment. The plan that he developed takesinto account that a fall from a great height would be deadly. The plan would allow Mr. Sharples to wait until a convenient moment onthe walk to push Shana Carter to her death. It would be, in Mr.

Sharples’ word “easy.” It would be open to a jury to find this was a“murder plan” that Lee Sharples had deliberated upon to the exclusion of any reasonable doubt. [79] The second area of evidence that would permit a jury to infer that Lee Sharples deliberated upon the murder of Shana Carter priorto December 4, 2010 is comprised of statements that he made to the U/C concerning his anxiety about the safety of his son when leftalone with Shana Carter. He told the U/C that the anxiety he felt “fucked [him] right up” and that he “couldn’t live with [himself] ifsomethin’ happened to” his son.

While acknowledging that killing someone was hard to do, he effectively said that he did not feel thathe had any alternative because to avoid acting could one day result in the death of Levaughn at the hand of his mother. His fear for hisson was something that “scared the shit out of [him].” [80] In my view these statements could permit a jury acting reasonably and following proper instruction to infer that Mr. Sharplesdeliberated about killing Shana Carter prior to him actually doing so.

The statements are evidence that he actually “considered” and“carefully thought” that as hard as killing might be he was impelled by his fears to weigh that hardship against the benefit of protectinghis child. The inference of prior deliberation is a conclusion within the field of inferences that could reasonably be drawn. [81] As noted, these two aspects of the evidence are sufficient to conclude that Mr. Sharples deliberated upon killing Shana Carterbefore he did so. Additionally, there is a third portion of evidence which is also potentially available to afford the inference ofdeliberation. Mr.

Sharples’ statements to the U/C about avoiding “spontaneity” {“spontaneous shit will get you … spontaneous shit putsyou in the fucking slammer forever”} are an invocation of the need to only act after deliberation. If the jury finds, as they may do, thatthese admonitions to the U/C are based upon his prior deliberations about murdering Shana Carter, they represent a third and verycompelling strand of evidence to support a finding that Mr. Sharples deliberated about murdering Shana Carter before he did so. Clearly,no jury is compelled to draw that inference but it is one that they may draw.

Despite the fact that the jury will be charged that a murdercommitted on sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder, for the purposesof committal on a count of first degree murder, there is sufficient evidence of the existence of prior deliberation about killing ShanaCarter by Mr. Sharples. The Defence Submissions on Planning [82] While conceding that a committal for second degree murder must be made, Mr. Hicks submits that the evidence does not admitof any inferences that would allow a jury to find that Mr.

Sharples’ intentional killing of Shana Carter was a planned murder. Thedefence submits that Mr. Sharples actions and comments after the murder, which bespeak planning to avoid detection for the killing,cannot be used to infer that the same mental state occurred before the murder. [83] Mr. Hicks introduced his submissions by reminding me that for a committal on first degree murder the Crown must adduceevidence of both planning and deliberation that occurred before the killing.

Since it was clear, (from my exchange with the Crown,) thatmy major concern was whether the conclusion that this killing was a planned murder was within the field of inferences that couldreasonably be drawn by a jury on the evidence Mr. Hicks directed me to the decision of Mr. Justice Barr in Re Talbot and The Queen(1985), (ON SC), 21 C.C.C. (3d) 390 (Ont. H.C.J.). There Mr.

Justice Barr, in the course of a certiorari application,reviewed the fact patterns in two cases where appellate courts overturned convictions for first degree murder and substituted convictionsfor second degree.[16] In each case the accused persisted in pursuing and killing the victim over an appreciable, even substantial, periodof time.

In each case the appellate court found that, despite the time frame over which the attacks occurred and despite the sequence ofevents and efforts that the attacker had to perform to carry out the killing, neither murder was a planned and deliberate murder. [84] The theory of the Crown in Re Talbot rested on two points – the demeanour of the accused upon arrest and the statements that hemade to investigators after turning himself in. As to his demeanour, Justice Barr noted that the accused’s calm and deliberate mannerwas equivocal evidence on whether the killing was planned and deliberate.

Barr J. was of the view that the after-the-fact demeanourevidence could be used to support either position.[17] More to the point, Justice Barr concluded that the fact that the killing was

intentional[18] was “no evidence at all that the killing had been preceded by planning.” (p. 393, 4th paragraph) As Justice Barr wrote:“Put another way, his demeanour when he came to the police affords no evidence that the accused had formed a calculated scheme or design which had been carefully thought out and the nature and consequences considered and weighed.” (p. 393, 5th paragraph) [85] The significant point for Mr.

Sharples’ position is that while Talbot admitted to the police that he had “started thinking about[killing the deceased] last night” Barr J. was of the view that “thinking about doing something” does not constitute the planning of theevent. In his view, thinking about doing something is a step that precedes the planning stage.[19] In Re Talbot the Crown urged that ajury could properly conclude that Talbot had formed a plan on the evening before the killing that he would kill the deceased if he failedto convince her not to leave him the next day.

Barr J. held that “it would not be open to a jury to accept that theory” because there was simply no evidence that the accused went beyond thinking about killing the victim. (p. 395 2nd paragraph).

In Justice Barr’s words “[t]oadopt the theory of the Crown that a plan was made the preceding evening would require the jury to leaven the evidence with conjecture.” (p. 395, 3rd paragraph) [86] Significantly, Barr J. recognizes it may well be, as a matter of actual fact, that Talbot did plan to kill prior to the killing but he found that “there is simply no evidence that he did so.” (p. 395, 3rd paragraph) As a result he found that the preliminary inquiry judgeexceeded his jurisdiction in committing Talbot for first degree murder in the absence of any evidence of planning. Mr.

Hicks submitsTalbot is identical to the Crown’s case here as he submits there is simply no evidence of planning. [87] In the same vein and to the same purpose Mr. Hicks reviewed R. v. Smith cited in footnote 17 to stress that the court must takepains not to confuse “intention” with planning where the Crown alleges a “planned” murder. Even more to the point, there must beevidence that the intention to kill preceded the plan to be implemented. In Mr. Hicks’ submission the various statements attributedto Mr.

Sharples by his co-workers are insufficient to meet these requirements since those statements were made at some indeterminatetime in circumstances that preclude any judgment about the sincerity with which they were uttered. [88] Putting the point again, Mr. Hicks submitted that since the court’s task is ‘to measure the sufficiency of the evidence … to see ifit could possibly support the inferences the Crown asks to be drawn’ the court cannot draw inferences when there is no evidence. As anexample of a case where there was no evidence of pre-murder planning, Mr. Hicks referred to the certiorari judgment in R. v.

Martin,[2009] O.J. No. 3255 (S.C.O.) which was reversed by the Court of Appeal at [2010] O.J. No. 3696. [89] In Martin the accused repeated a break, enter and robbery at the home of the soon to be deceased. He was interrupted in thesecond break and enter by the return of the homeowner whom he killed after a verbal argument escalated into a physical confrontation. Martin then engaged in multiple thoughtful acts designed to increase the amount of his theft and designed to attempt to cover up thekilling.

The justice presiding at the preliminary inquiry found that there were only three acts of pre-offence conduct that were availableto be considered on the issue of planning; viz (

i) the first robbery; (ii) suggesting to a party to the first robbery to come along and commitit again; and (iii) arriving at the second robbery in a fashion similar to the first robbery. The preliminary inquiry justice noted that hewas precluded from engaging in speculation about planning and found that none of these items amounted to evidence of planning amurder.

Hence, he committed Martin to trial for second degree murder. [90] In an extensive review of authorities the justice entertaining the Crown’s certiorari application reversed that decision and orderedthe justice hearing the preliminary inquiry to commit on first degree. The certiorari judge found that the preliminary inquiry justicecommitted jurisdictional error by failing to consider all of the evidence. On further appeal by the accused, the Court of Appeal reversedthat finding holding that the initial justice correctly adopted and applied the test in R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R.828.

They agreed with the preliminary inquiry justice that no jury properly instructed could reasonably infer that the accused hadplanned the killing. Once again, Mr. Hicks submits that the same result should obtain here and for that same reason. The Availability of Inferences of Planning from Post-Offence Conduct [91] Despite the defence’s concession of a committal for second degree murder, no plea was taken from Mr. Sharples and no formalconcession of liability for any offence was made by him personally or conceded on his behalf through counsel.

Given that I asked forthe defence’s submission on the comments found at paragraph [43] Arcangioli. [20] These passages provide for a no probative valuecharge only where an accused’s after-the-fact conduct may be equally explained by a desire to avoid culpability for some offence otherthan the one charged, that the accused has admitted committing.[21] [92] Mr. Hicks made two submissions.

The first submission was that since any realistic assessment of the evidence mandates acommittal on second degree murder and since the defence concedes a committal on second degree that concession the functionalequivalent of an admission of liability. Given that, the court ought to direct itself that the after-the-fact evidence has no probative valueon the question of “planning” since that same evidence is equally explained by a desire to avoid being apprehended for second degreemurder. [93] I reject that submission since Mr. Sharples has not admitted committing the actus reus of any offence.

The defenceacknowledgement that the Crown has called sufficient evidence to mandate a committal on second degree murder is not any admission ofculpability by the accused so that any limitation directed by Arcangioli does not obtain. [94] Returning to his main submission on planning, Mr. Hicks submitted that the availability of inferences about Mr. Sharples’ levelof culpability to be drawn from his post-offence conduct is never reached because that post-offence conduct is not of such a nature as topermit a jury to infer planning. In support of that submission Mr.

Hicks undertook exegeses of several cases that set out “the test” (sic)that permits the identification of pre-offence “planning” to be inferred from post-offence conduct. [95] He began this portion of his submissions with a review of R. v. Khan, 2007 ONCA 779 , [2007] O.J. No. 4383(C.A.).[22] Khan holds that post-offence conduct may be used by a jury to infer planning in appropriate cases. The circumstancespermitting such use are described in R. v. MacKinnon (1999), (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.) at

paragraphs [14] and [15] and in R. v. Poitras (2002), (ON CA), 57 O.R. (3d) 538 (Ont. C.A.) at paragraph [11] andin R. v. Teske (2005), (ON CA), 202 O.A.C. 239 at paragraph [85]. Given the significance of that jurisprudence tothe issue of committal in this case, those respective discussions are appended as footnotes to this paragraph. [23] [24] [25] [96] Mr. Hicks stressed that in Khan there were several items of pre-offence conduct that permitted the post-offence conduct to beused to infer pre-offence planning based upon pre-offence conduct.

Put another way, the pre-offence conduct permitted reasonableinferences to be drawn from the post-offence actions of the accused. Khan’s post-killing actions could be interpreted and understood aspart of a planned murder that had pre-offence and post-offence elements to it. The totality of these behaviours, which permittedreasonable inferences to be drawn from post-offence conduct, can be usefully distinguished from the cases of Martin, Smith and Ruegerwhere no such evidence was available. [97] The list of post-offence and pre-offence conduct in Khan is worth noting. The post-offence conduct included: (

i) Evidence that the body was dismembered virtually immediately after the killing; (ii) Evidence that the body parts were buried in several locations within a short period after the murder; (iii) Evidence that the apartment where the child was murdered, as well as a backpack used to carry body parts, were cleanedmeticulously; (iv) Evidence that some of the surgical instruments were disposed of; (

v) Evidence that school authorities were falsely advised that the child had returned to Pakistan; (vi) Evidence that the accused and his wife moved to a new apartment soon after the murder; and; (vii)Evidence that the accused changed his physical appearance shortly after he killed the child, as he knew he had been observedburying some of the body parts in a nearby park. The Court of Appeal agreed that this conduct was informed by and can be understood through the lens of the following items of pre-offence conduct: (

i) Evidence of Khan’s animus towards his daughter, in particular his obsessive belief that she was not his child; (ii) Evidence that from birth, Khan had no involvement with his daughter until she was foisted on him by village elders following hisdivorce; (iii) Evidence that Khan ordered surgical instruments from Pakistan, from which it could be reasonably inferred that he planned to usethem to dismember the child following her death (three of those instruments were found to be missing from the set when the policesearched Khan’s apartment); (iv) Evidence from which the jury could infer that Khan’s pre-selection of at least one of the burial sites (

v) Evidence from which the jury could infer that Khan took steps to isolate the child; and, (vi) Evidence that Khan was involved in physical abuse of the child predating her death. [98] During Mr. Hicks’ submissions on this case I suggested that the evidence called demonstrated pre-offence animus by Mr.Sharples towards the deceased. Mr. Hicks demurred and pointed out that Mr. Sharples took her in and kept her and the child; that he gotthem away from a life of “hell” in Brampton; that though they may not have had a happy relationship they were staying together for thesake of their son. He pointed out that Mr.

Sharples tolerated Shana Carter’s method of earning a living and that he sent them support andtried to visit every weekend when they were not living together. In particular Mr. Hicks pointed out that there is no evidence that Ms.Carter ever complained of being physically abused by Mr. Sharples.[26] [99] While all of that may be true it does not assist Mr. Sharples, at this stage of this prosecution, given the evidence of animustowards the deceased outlined at paragraphs [9], [39], [59] and [61]. As noted by Justice Hill in R. v. Coke, [1996] O.J.

No. 808 (SCO)at paragraphs [10] and [11] “[10] Not infrequently, it is submitted by an applicant seeking to quash a committal order that other explanations or inferences,inconsistent with guilt, but equally consistent with innocence, can be rallied to counter the theory submitted by the Crown. Thisapproach risks usurpation of the jury function.

The extent of weighing evidence for the justice is directed to the presence of anyevidence not the reconciliation of contradictions or competing inferences. [11] It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value ofan item or chain of related items of evidence simply because an equally permissible inference accords with an innocent

interpretation.…” [27]

The same point was made by Duncan J. in Streeter, at the preliminary inquiry, where he noted that while a preliminary inquiry justicemust consider all of the evidence both inculpatory and exculpatory, because a jury would be entitled to accept or reject any piece ofevidence, exculpatory evidence plays little role in the committal determination since the Crown’s case must be taken at its highest for thepurposes of committal.[28] [100] Mr. Hicks relied upon R. v. Teske, (ON CA), [2005] O.J.

No. 3759 (C.A.) as supporting his contention that aninference of pre-offence planning cannot be made based upon the fact that Mr. Sharples took substantial pains to cover up thebloodletting and to hide Shana Carter’s body. Teske was a judge alone second degree murder trial, so that planning was never in issue. The issue there, inter alia, was whether the trial judge was correct to use Teske’s post-offence conduct to infer that he had the intentionto kill. The issue was not the sufficiency of evidence for committal at a preliminary inquiry. [101] In Teske, the accused killed his wife and then cremated her body.

Then, some days later, he reported her missing and told policethat she had walked away after assaulting him. Before he contacted the police, however, he did his best to clean up and repaint over herblood stains. At trial, Teske admitted to having committed manslaughter. The trial judge used Teske’s extensive post-offence actions toinfer that he had formed the secondary intent to cause death required by s. 229 (a) (ii).[29] Teske’s appeal on this ground was dismissedfor the reasons identified by the Court of Appeal, which appear at footnote 26. [102] Contrary to Mr.

Hicks’ submission, (that an inference of pre-offence planning cannot be based upon the fact that Mr. Sharplestook substantial pains to cover up the bloodletting and to hide Shana Carter’s body,) Teske stands for the proposition that post-offenceconduct is a species of circumstantial evidence which must be considered in the context of the entirety of the evidence and the issuesraised at trial.

The appeal court ruled that some post-offence conduct will, as a matter of common sense and human experience, whenviewed in the context of the entirety of the evidence, be reasonably capable of supporting inferences about pre-offence facts. In Teskethe evidence supported inferences about his state of mind, his intentions when he killed his spouse. In Khan the post-offence conductwas capable of supporting inferences that Khan had planned to murder his daughter.

Whether the post-offence evidence against Mr.Sharples can reasonably support an inference of pre-offence planning will be considered in due course. [103] Mr. Hicks next turned to R. v. Panghali, [2012] B.C.J. No. 2112 (B.C.C.A.). In his submission Panghali ought to assist in afinding that an accused’s post-offence conduct, in that case of burning the corpse, does not permit an inference of pre-offence planning. Panghali was charged with second degree murder so, once again, inferring planning from post-offence conduct was not relevant andtherefore not considered in that case.

Panghali, quoting other binding authority, holds that post-offence conduct may be circumstantialevidence the probative value and relevance of which must be assessed on a case-by-case basis. In particular, “[w]hether or not a giveninstance of post-offence conduct has probative value with respect to the accused's level of culpability depends entirely on the specificnature of the conduct, its relationship to the record as a whole, and the issues raised at trial.

There will undoubtedly be cases where, as amatter of logic and human experience, certain aspects of the accused's post-offence conduct support an inference regarding his level ofculpability.” (Panghali at [60]) The important point is that the assessment of after-the-fact or, if you prefer, post-offence conduct, is factspecific and to be determined in context on a case-by-case basis. [104] In my view, the defence can find little comfort in Panghali which held that “while the burning of the body alone may not beprobative on the issue of intention, it is probative of intention when considered in combination with the evidence about the violent meansused to cause death.” (at paragraph [67]) The judgment is merely a particular application of the principle quoted at paragraph [60] ofthat judgment, which is quoted above at paragraph [103]. [105] Mr.

Hicks turned next to R. v. Allen, 2009 ABCA 341 , [2009] A.J. No. 1116 (C.A.), an appeal by Allen of hisconviction for first degree murder of his tenant, who was in arrears of rent. due. There were two related grounds of appeal which allegedthat the trial judge erred in her instructions dealing with post–offence conduct by permitting the jury to use Allen’s post-offence conductto infer planning and deliberation.

The appeal decision turned on whether those inferences as urged by the Crown could reasonably beborne by the evidence; “whether it would be reasonable to find, as the Crown submitted, that what occurred after the fact can bereasonably said to accord with the existence of a plan before the fact to which the after fact conduct related.” (at paragraph [87]). [106] Contrary to the defence position, Allen at paragraph [89] provides a clear statement of an example of inferring a pre-offence planfrom post-offence conduct by reference to R. v. Baron and Wertman, (ON CA), [1976] O.J.

No 2304 (C.A.) whichamounted to an example,“… where following a murder, the conduct of the killer is prompt, rational, detailed and reasonably effective toconceal the crime and to dispose of evidence, that conduct is not merely evidence of involvement in the killing.

That conduct is alsoevidence of a pre-existing plan to do the killing, especially when there is evidence of a specific admission by the killer that disposing ofthe evidence (getting rid of the vehicle) was itself part of the prior preparations. …” [107] In Allen the Alberta Court of Appeal went on to quote a lengthy passage from paragraph [32] of R. v. White, (SCC), [1998] 2 S.C.R. 72 which includes the following instruction and observation: “… The result will always turn on the nature of theevidence in question and its relevance to the real issue in dispute.

It is possible to imagine cases in which evidence of post-offenceconduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from thesame set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level ofculpability admitted, it might be found to be more consistent with the offence charged. …” [108] In the result, the Alberta Court of Appeal dismissed the appeal[30] and noted ample evidence of ongoing animus by Allen againstthe deceased related to financial concerns.

Significantly, the Court noted that “the consistency of the pre-killing animus, thinking andpreparation with the post-killing conduct was a powerful rationale for the jury to find planning and deliberation.” (at paragraph [92]) [109] Mr Hicks submits, in effect, that the Crown has not led and cannot demonstrate any pre-offence evidence of “preparation” for thevery reason that preparation bespeaks a plan and in the defence submission there is no evidence of any planning.

In all of the caseswhere pre-killing planning was inferred from post-offence conduct there was a body of pre-offence conduct which permitted thatinference to be drawn, which is wholly lacking in this prosecution. In the defence submission, the jurisprudence does not permitinferences of planning to be inferred from post-offence conduct alone, because the post-offence conduct merely demonstrates a desire toescape detection for, on the evidence adduced, an intentional killing but nothing more. It is the defence position that

the Crown’s case is analogous to Martin and that the court is in the same position as the justice in Martin because this evidence is simplynot reasonably capable of supporting the inferences that the Crown will ask the jury to draw. The defence contends that a finding byinference that Mr. Sharples planned the killing of Shana Carter before he carried it out is not within the field of inferences that couldreasonably be drawn, on the evidence adduced.

Reasons for Committal on First Degree Murder [110] I am required to order a committal to trial even if the available inferences are not the inferences that I would draw.

The legalstandard to be applied is whether the evidence is reasonably capable of supporting the inferences that the prosecutor seeks to have thetrier of fact draw, not the likelihood of the trier actually doing so.[31] I am satisfied that on the evidence adduced a finding by a jury, asurged by the Crown[32], that Lee Sharples committed a planned a deliberate murder of Shana Carter is a conclusion within the field ofinferences that could reasonably be drawn. I arrive at that decision on the following bases. [111] In R. v. Mitchell (1965), (SCC), 1 C.C.C. 155 (S.C.C.), at page 162, Mr.

Justice Spence, held that in the absenceof direct evidence, planning and deliberation may be proven by inference by reference to all of the circumstances. He went on, at page165, to note that planning and deliberation involve the exercise of mental processes so that “in almost every case where a jury is requiredto reach a conclusion as to whether or not a murder was planned and deliberate on the part of the accused, it must reach a conclusion onthe basis of evidence which is circumstantial.” But, Mitchell does not require that the inferences demonstrating planning and deliberationbe only consistent with guilt.

The pattern of evidence which [the jury] must now consider is not a series of fac

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