Court dismisses Henneberry’s appeal
On Thursday last week, when the Nova Scotia Court of Appeal dismissed Victoria Henneberry’s appeal of her guilty plea to murder, family members of murder victim Loretta Saunders applauded. Miriam Saunders, Loretta’s mother, told reporters she can now begin to heal and advocate for the larger issues raised by her daughter’s case. Maureen Googoo wrote:
“I know the justice system to us is not right but I felt that today, the justice system did us a very good job and I’m very pleased,” [Saunders] added.
Miriam Saunders said she can now heal so she can focus her efforts on the issue of missing and murdered Indigenous women and girls in Canada.
“I know there’s people out there who had no justice. We’re one of the fortunate and I thank God for that,” she said.
“I believe Loretta’s death was the reason for this. (It) is to open the door to the murdered and missing and I’m very grateful for that.”
Henneberry wanted an adjournment on Wednesday morning because she said she wasn’t ready. She had no witnesses — doctors, for example — to give evidence about her mental state at the time of her plea. She also said she didn’t have her appeal books with her, as she had mailed them to Senator Kim Pate in Ottawa in the hopes that Senator Pate would help her find a new lawyer.
An interesting exchange between Henneberry and Chief Justice Michael MacDonald possibly indicated Henneberry’s confidence that she would be granted her adjournment request. It had apparently been relayed to the judges that Henneberry had discussed her adjournment with the sheriff deputies bringing her to court that morning.
The chief justice asked Henneberry, “Did you tell the Sheriffs the appeal wasn’t going ahead?” to which she replied, “I said I was going to ask for an adjournment.” Nothing turned on it, but it stuck out.
Crown counsel Mark Scott cross-examined Henneberry herself. (Scott was the coach for my moot team this year.) She admitted she had not received any confirmation from Senator Pate that a new lawyer was being located, or even that her appeal books had been received, and never indicated that she would need them back for her April 12 court date.
Scott argued to the Court that Henneberry knew of the timeline for this appeal, had guidance about what to put in an affidavit, and understood the need to obtain her medical records herself and subpoena witnesses to appear for cross-examination. Justice Van den Eynden ruled in 2016 that this was well within Henneberry’s capacity.
Referring to correspondence between Henneberry, the Crown and the Court, Scott asked Henneberry, “Do you remember your letter dated April 17?” Henneberry replied, “I don’t remember a lot of things I wrote. I have so much going on in my life.” The Crown ultimately suggested that Henneberry was “holding her own appeal hostage” and revealed suspicions of fraud. The Court denied her adjournment request.
If you want to tell the Court of Appeal about anything that didn’t come up in the courts below, you need to ask them for permission with a fresh evidence application. As I mentioned, Henneberry had no witnesses to support her application, but did produce a document from a doctor she had met only a few weeks earlier. It was apparently handwritten, entitled “Impressions,” and the Court had never seen it before. She appeared to refer to this document as a PTSD diagnosis. Scott argued it was too recent and didn’t even approach Henneberry’s mental state when entering her guilty plea and being sentenced.
The Crown had provided an affidavit from a psychologist, Andrew Starzomski, who assessed Henneberry at the East Coast Forensic Hospital, to support the case against the fresh evidence application. Henneberry cross-examined this doctor. He told the Court, in doctor-speak, that Henneberry’s self-described symptoms were unrealistic. “Your responses were so extreme and invalid,” he said, “that the results were uninterpretable.” He later said, “I would have difficulty … accepting at face value your account of your symptoms,” indicating he would need to speak to people around her as well. “Your responses,” he continued, “fell outside the ranges of people who are known to have clinical conditions.”
The Court allowed Starzomski to view the other doctor’s “Impressions” document, reserving judgment on its admissibility, rather than allow Henneberry to tell him that it was a PTSD diagnosis. He noted that the document was not a diagnosis and specifically did not contain a “consideration that a person for secondary gain is putting forward symptoms of PTSD,” which is apparently an important component of a thorough PTSD assessment. Who knew?
Henneberry represented herself in her appeal, for a couple of reasons. First, she couldn’t pay for a lawyer. After being turned down for Legal Aid last year, she applied to the Court of Appeal to order the province to pay for a lawyer for her, and was denied.
Second, a lawyer would probably have recommended Henneberry not proceed with this appeal. Having a lawyer, state-funded or not, wouldn’t have changed the fact that her case was weak. As Justice Van den Eynden said in dismissing Henneberry’s state-funded counsel application, “if there are any arguable issues raised by Ms. Henneberry on appeal, they appear weak at best” (para 10). With no evidence about her state of mind at the time of her plea and sentence, Henneberry had no evidence for the Court to even consider on appeal.
On Wednesday, the Court asked if she wished to proceed to argument on her appeal that afternoon, or wait until tomorrow. Henneberry asked for the courtroom to be cleared before proceeding with her argument. A Saunders supporter gasped incredulously.
Chief Justice MacDonald refused, politely, and explained the open court principle. Henneberry said, “Then I have nothing to say at this moment.” The Chief Justice hesitated, asking, “So you’ll rely on your written submissions? Or …” but Henneberry clarified, “Tomorrow, then.” At the risk of being inappropriately irreverent, it reminded me of Lionel Hutz on The Simpsons:
Hutz: Thank you, Dr. Hibbert. I rest my case.
Judge: You rest your case?
Hutz: What? Oh no, I thought that was just a figure of speech. CASE CLOSED.
As Justice Beveridge reminded Henneberry near the close of proceedings on Tuesday, the Court could not simply substitute a conviction of criminal negligence causing death and accessory to murder after the fact, as Henneberry hoped. The Court’s only option for a remedy, even if it decided to grant the appeal of her guilty plea, would have been to send the case back to Supreme Court for a new trial on first degree murder— a trial in which Blake Legette, Henneberry’s former boyfriend who pleaded guilty to first degree murder, would be a competent and compellable witness against her.
So, is Henneberry making up symptoms, as indicated (more politely) by the psychologist? Was she holding her own appeal hostage, as argued by the Crown? With the dismissal of her appeal, those questions need not be answered; the Saunders family can stop attending court and begin to heal.
Sandeson trial begins
Tuesday saw hundreds of people fill the third floor lobby of the Law Courts in Halifax as the trial of William Michael Sandeson got underway. Sandeson is accused of first-degree murder following the 2015 disappearance of Taylor Samson, whose remains have never been found. Both men were Dalhousie students.
I overheard a court clerk saying over 300 people were summoned, and that looked about right given the number of people clogging the third floor. They had been there since 8:15am. Sheriff’s deputies managed to cram everyone into two packed courtrooms, with standing room only and a Skype connection. It seems like overkill, but the jury coordinator has to consider the likelihood that jurors could be familiar with the case from all the media attention it has received and have formed an opinion about it.
In a jury trial, the accused is not formally arraigned until after the jury is empanelled. On Tuesday morning that meant Sandeson pleaded not guilty in front of an audience of hundreds. Potential jurors stood mere feet from him.
Six jurors were selected on Tuesday, and 14 jurors in total will be chosen. Two alternates will hear all evidence in the case, in case a couple of jurors drop off before June; that’s when Justice Joshua Arnold told the packed courtrooms that the trial may end. June! Anything could happen in eight weeks.
Ever wonder how a murder charge can be laid without a body, or how the Crown can prove it? Crown counsel Susan MacKay and Kim McOnie will need to present enough circumstantial evidence to indicate that Taylor Samson met an untimely end at the hands of Sandeson.
Natasha Pace interviewed lawyer Luke Craggs last September after Sandeson was charged, and he listed a few examples of evidence to support police laying a murder charge.
The circumstantial evidence police need to make their case can come in many ways. Craggs said one example would be from the suspect themselves. While under arrest and being interviewed by investigators, a suspect could confess to committing the homicide.
There could also be a situation where police have testimony from witnesses. For example, there could be half a dozen people who saw a person alive one minute, and then go off alone with a suspect and disappear.
Another thing Craggs said police can do is intercept conversations between the victim and the suspect.
“Things like text messages or social media messages, or other people who saw the person alive recently can lead police to a scene,” Craggs said.
“If they start looking at that scene and they find personal belongings that belong to the missing person or blood of the missing person in the suspects residence or something like that, it can certainly create grounds to arrest the person.”
Canadians have been convicted of murder without the bodies of their victims being found. In a high-profile 2016 case, Travis Vader was convicted of two counts of manslaughter and sentenced to life in prison with parole eligibility after seven years for the killing of Lyle and Marie McCann. Their bodies have never been found, but their burned-out RV indicated something was seriously wrong.
In 2001, a Saskatoon man was charged with murder after a missing Indigenous woman’s torn clothing was found on a road. “The evidence supports that the young lady did meet her death in a manner that wasn’t of natural causes,” Cpl. Jerry Wilde said at the time of laying charges. (Crystal Lee Paskemin’s remains were later found, and the violence she had suffered was extreme. David Kenneth MacKay was convicted in 2002 of first-degree murder and sentenced to life in prison without parole for 25 years. He appealed his conviction to the Saskatchewan Court of Appeal and the Supreme Court of Canada in 2006, unsuccessfully.)
The Canadian Press also covered the subject in 2016 in the context of the Vader case, listing cases where no body was found at the time of charge or trial. (All these cases read like the true crime podcasts we’re currently binging on.) FindLaw Canada lists some further examples to highlight the challenges faced by the Crown in proving these cases:
In 1987, Calgary father Alois Dolejs was convicted on two counts of second-degree murder for deaths of his two young children even though their bodies were missing. However, police had found his abandoned truck containing bloodstains and the clothing of the two missing kids.
While those facts don’t conclusively prove murder, they also don’t allow many reasonable alternatives.
Dolejs himself eventually led police to the remains, months after he’d already been sentenced to life in prison.
The lack of physical remains, however, can lead to lesser charges, or undo a case completely.
In 2014, prosecutors had to abandon second-degree murder charges and accept a manslaughter plea from Ontario man James Parise who’d beaten a woman to death and hidden the body. Parise claimed he had killed her inadvertently and, without a body showing injuries to prove otherwise, prosecutors couldn’t prove murder.
In a 1991 Alberta case, the lack of a body undermined an entire case. A Red Deer man was acquitted of second-degree murder despite some gruesome evidence, including extensive bloodstains in a bathroom, blood, and hair on the tub and a large knife on the floor. But without a body and other strong circumstantial evidence, prosecutors couldn’t secure the conviction.
In 2014, David Butt wrote in his Globe and Mail column about his experience successfully prosecuting a murder trial without a body, convicting Timothy Culham in 2001 of the murder of Hugh Sinclair, whose remains weren’t found until 2003. He wrote in response to murder charges being laid against Douglas Garland when the bodies of Alvin Cecil Liknes, Kathryn Faye Liknes and their grandson Nathan O’Brien had not yet been found.
Butt listed three keys to success in proving murder without a body: trust in the wisdom of the jury; sell your circumstantial evidence; and rule out alternative scenarios. I’ll quote from him to bring it back to the subject of juries:
First, remember who is making the decision in a murder case. Almost without exception, murder cases are tried by a jury. Simple math tells us that the 12 jury members, depending on their ages, will have between three and seven centuries of combined life experience to draw upon when weighing the evidence. That is a very deep pool of wisdom, and it is the finest and most enduring feature of our jury system. This profusion of wisdom means the jury will understand that bad things don’t happen because of malevolent pixies or alien abductions. They happen for terrible reasons, tragic reasons, but reasons that are accessible to human understanding. The goal then, quite simply, is to provide an explanation for both the crime and the missing remains that makes sense.
June. Anything can happen in eight weeks.
The more interesting case is the decision dismissing the appeal by Tony Smith and released late in the day last Thursday on a 4 day Easter break. Smith racked up significant costs to taxpayers in his failed claim of discrimination based on race and awarded costs of $3,000 against him for his appeal of a Human Rights Commission decision.
Summary : ” The appellant had been an employee of the CDHA or its previous governmental iterations since 1990. From 2005 until he chose to retire in 2012, he was employed as an occupational therapy assistant, part of a team offering mental
health services to a particular patient population.
A Board of Inquiry was appointed to adjudicate a complaint initiated by the appellant in which he identified 2005 as being the year the alleged discrimination/retaliation (claimed to be based on his race and colour) began. The appellant said he was the victim of repeated acts of discrimination by his employer which culminated in an eventual “wrongful” transfer to a location, not of his choosing.
After a hearing lasting 17 days the Board dismissed the complaint concluding that the dispute was not about “racism”and that the appellant was not chosen to move because of the color of his skin. Rather, he was relocated (along with two
others) because his client-base comprised a different mentally ill population, which needed the kind of community support provided at the location to which the appellant had been transferred. The move was concurrent with other decisions
involving a global re-organization by the CDHA of the various mental health services it offered. The Board found that employees, management, the unions, as well as the appellant himself were involved in and privy to these changes
while still in the planning phase. The Board ultimately determined that the appellant’s transfer was a health care decision and not the result of any discrimination or retaliation on the part of the CDHA. The appellant appealed saying the Board erred in refusing to inquire into evidence of racism/retaliation from before 2005.
To have permitted the appellant to reconfigure his complaint into a broad, sweeping allegation of “racism” said to have virtually permeated his entire working career, would be to turn the objective of Nova Scotia’s human rights legislation
on its head. ”
The legal and ancillary costs for the complaint must be quite high.