On the docket

Henneberry to appeal guilty plea for second-degree murder of Loretta Saunders

Victoria Henneberry will appear before the Nova Scotia Court of Appeal on Wednesday and Thursday to appeal her guilty plea. She wants to argue that her mental state was impaired when she entered her plea, but she has to convince the Court to admit fresh evidence to support that claim.

Henneberry pleaded guilty in April 2015 to second degree murder for the killing of Loretta Saunders, and was sentenced to life in prison, eligible for parole in 10 years. Blake Leggette pleaded guilty to first degree murder, and was sentenced to life in prison with eligibility for parole in 25 years. The couple was subletting an apartment from Saunders, and killed her to get out of paying rent.

In August of 2015, Henneberry sought to appeal her guilty plea, saying she was anxious, stressed and “panicked” when she entered her plea. She was represented by a lawyer for her plea and sentencing, but not for her efforts to appeal. Henneberry was denied Legal Aid, and denied state-funded counsel by the Court of Appeal in 2016. Saunders’ mother Miriam Saunders expressed relief when Henneberry was denied a state-funded lawyer.

Part of the framework for deciding if someone can be awarded state-funded counsel by a court requires a consideration of the merits of their appeal. You might be too poor to afford a lawyer, and a court may very well accept that, but does your case have a chance? There’s a similar consideration that’s made when people apply for Legal Aid funding. If you’re the one trying to get a lawyer, this will feel very unfair, since if you’ve come that far you are probably also pretty convinced that you can win your case if only you could get a lawyer.

It’s not the job of the court to actually rule on the issues at that stage, but only to decide if it has any merit. It’s a fairly low threshold to meet. In 2016, Justice Van den Eynden canvassed the available court records in which Henneberry gave little sign of confusion, dissatisfaction, or impairment during the time surrounding her plea, and wrote, “[I]f there are any arguable issues raised by Ms. Henneberry on appeal, they appear weak at best” (para 10). Some of the other considerations in a state-funded counsel applications include the complexity of the case and the ability of the individual to participate and argue the case without a lawyer. The Court found Henneberry could participate meaningfully and manage her case without a lawyer. So this week, Henneberry will argue to the Court of Appeal herself.

My moot team coach Mark Scott will be arguing for the Crown. Law students or anyone interested in how to be a strong advocate while working ethically with self-reps on the other side will see a good example this week in courtroom 502, at 10am and 2pm on April 12 and 13.

In Court

Ellison on trial for attempted murder

Arnelle Wellington Ellison appeared in Supreme Court this week for his trial on charges of attempted murder and other charges stemming from an attack near Brunswick and Artz streets in October 2015. Ellison was arrested in January 2016 in Toronto.

On Monday, Crown counsel Robert Kennedy called a young woman to testify who said she witnessed the incident in 2015. I only got to watch her cross-examination, in which defence lawyer Peter Planetta used the young woman’s statement to police in 2015 to challenge evidence she gave in court. This is done through a process called impeachment, and allows counsel to give the witness the opportunity to review their previous statement and either adopt that version of events or deny it.

For example, the witness said in court she saw someone leave a house. It wasn’t a crucial point to the narrative. But Planetta had her refer to her police statement to confront the witness with the fact that she didn’t actually see this person leave this house. The witness admitted she only assumed it — that she was just guessing, because it made sense to her.

Planetta asked the witness, “Is there anything else that you’re not sure of, that you’re just guessing about, that you think just made sense?” “No.” “So everything else you’re saying today is the truth?” “Yes.” He was able to impeach her four more times on inconsistencies between evidence she gave to police in 2015 and evidence she gave in court.

Of course, it’s a challenge for anyone to recall events from two years ago. But if you’ve watched Law & Order you know how damning a well-executed impeachment can be to a witness’s credibility. Impeachment is an important part of cross-examination which, in our legal system, is considered crucial for trial fairness — parties must be able to test the evidence given against them. It can be done civilly and respectfully, and should not be used to invoke stereotypes or myths such as in a sexual assault case, for example … but I digress.

Ellison’s trial continues as the Crown is expected to close its case this week. The defence will then be allowed to call evidence if Ellison chooses.

Butcher trial postponed

Nicholas Butcher’s trial will not take place in April 2017 as originally scheduled. Butcher is accused of killing Kristin Johnston in 2016. He was scheduled to begin his trial this month, but fired his lawyers in March. He is currently trying to find a new lawyer, and must appear in three weeks to tell the court how his search is going.

Hancock’s financial advisor pleads guilty to fraud

Glenn Francis Dunbar pleaded guilty on Tuesday to defrauding three people of over $1 million: CBC sports broadcaster John Hancock, his wife, and daughter. Steve Bruce reports that he will be sentenced in June.

Would-be mall shooting conspirator pleads guilty

Lindsay Kanittha Souvannarath of Illinois pleaded guilty Tuesday to conspiracy to commit murder. She plotted with co-conspirators Randall Steven Shepherd of Halifax and James Gamble of Timberlea to carry out a mass shooting in the Halifax Shopping Centre in 2015. Shepherd has already been sentenced to 10 years for the same charge, and Gamble committed suicide when police got to his home the day before the planned attack.

The plea came as a surprise to prosecutors in the midst of pre-trial applications on the admissibility of certain pieces of evidence. Defence lawyer Luke Craggs (who has the most uncommonly badass promotional photos on his website, taken at Fort McNab) clearly saw the right moment based on those evidentiary rulings when the case was best resolved with a plea. Sentencing for Souvannarath will be in October.

Decisions

Judge says decision to move teen to adult jail was reasonable

An 18-year-old has been held in adult jail for more than 200 days, and a judge has ruled that the decision to keep him there was reasonable.

The youth, NBP, was previously housed at the Nova Scotia Youth Facility in Waterville serving a custodial sentence. In 2015, NBP was sentenced to four years in custody and three years probation after pleading guilty to second degree murder in the 2014 killing of Daniel Michael Pellerin in Dartmouth.

In September 2016, NBP was moved to the Northeast Nova Scotia Correctional Facility after a “riot” broke out at the Waterville facility. NBP was apparently instrumental in that incident. El Jones wrote at the time in the Examiner about the nature of the word “riot,” the history of riots, and the debate around custodial detention and being “soft on crime.”

“More punitive youth laws will always affect racialized people the most, and will only perpetuate disproportionate imprisonment and criminalization,” Jones wrote. “… The worst response would be placing young offenders into adult prisons, or giving young people long sentences, or deciding that youth can’t be rehabilitated. Protecting staff and punishing youth are two different things though, and we need to keep that in mind.”

NBP filed a habeas corpus application in February 2017, asserting that his detention in the Northeast Nova Scotia Correctional Facility (“North Nova”) is unlawful. Justice Peter Rosinski accepted NBP’s argument that he was subject to a significant deprivation of liberty, but ruled that the decision of the provincial Director of Correctional Services not to return him to Waterville was within a reasonable range of decisions (à la Dunsmuir v New Brunswick) and dismissed the habeas corpus application.

The ruling deals with principles of administrative law such as procedural fairness. The judge also engages in statutory interpretation, a process judges use to determine what words and phrases mean. For example, the law allows for youth offenders to be “temporarily housed” in adult facilities as long as they’re kept separate from adults. So, the meaning of “temporarily housing” had to be interpreted in this case. Can a person be “temporarily housed” for 200 days? What does “temporarily” mean in the context of the law, and what do we learn from the choice of the word “housing” rather than “detention”? Based on the context and circumstances of this offender, the judge ruled that this amount of time was reasonable for “temporarily housing” NBP.

NBP is expected to appear in court in May 2017 to answer to charges stemming from the alleged September riot and to respond to a Crown application to impose an adult sentence on him. He will continue to be housed at North Nova. NBP will have new counsel at that time, as his Legal Aid lawyer Rickcola Brinton was appointed to the provincial bench on March 31.

Elderly father’s final will stands

Estate and will cases are a sad and interesting read. In the case of Boutilier Estate v Boutilier, an elderly father, Allister, previously had wills which more or less divided his estate equally among his six children. His last will, executed the day before he died in July 2015, gave his home and its contents to one son, David, with bequests to all his children except one.

The other children contested this last will, saying their father had not had a “sound and disposing mind” when he executed it. Justice Heather Robertson found that he had, based on evidence from the lawyer who executed the most recent will and who discussed the change in distribution with the father.

There’s nothing groundbreaking in the case, but like many wills cases, it involves highly personal, touching details about the life of the deceased. Allister lived closest to his son David and lived independently up until 2014 when he moved to the Veterans’ wing of Camp Hill (where my own grandfather lived his last months). The judge wrote that he “maintained his own house inside and lived like a bachelor, cleaning up before guests arrived or in later life before [nurses] arrived,” and “received friends and family in his home, whether tidy or not” (paras 25 and 28). These details always make me smile.

Estate litigation isn’t always a smiling matter, of course, and in this case siblings asserted that David had asserted undue influence over his father. The judge did not accept this claim.