Her Majesty the Queen v. Blake Leggette v. Victoria Henneberry, 2014 NSPC 117

Editor’s note: Erratum released August 18, 2015. Original judgment has been corrected, with text of erratum appended. IN THE PROVINCIAL COURT OF NOVA SCOTIA Cite as: R v. Leggette, 2014 NSPC 117 Date: August 1, 2014 Docket: 2704276, 2704277 Registry: Halifax BETWEEN: Her Majesty the Queen v. Blake Leggette and Victoria Henneberry DECISION ON COMMITTAL Judge: The Honourable Judge Anne S. Derrick Heard: July 21, 22, 23, 24, and 25, 2014 Decision: August 1, 2014 Charges:

section 235 of the Criminal Code Counsel: Christine Driscoll and Sean McCarroll, for the Crown Terrance G. Sheppard for Blake Leggette Patrick Atherton for Victoria Henneberry By the Court: Introduction [1] Blake Leggette and Victoria Henneberry are jointly charged with the first degree murder of Loretta Saunders. As will be apparentwhen I review the evidence, committal is justified in the case of Blake Leggette at least for second degree murder and for VictoriaHenneberry at least as an accessory after the fact to murder.

Other obvious offences disclosed by the evidence admissible against both ofthem are: theft and unlawful possession of Loretta Saunders’ Scotiabank client card, cell phone, and Toyota Celica motor vehicle,contrary to sections 322 and 354 of the Criminal Code; and offering an indignity to Ms. Saunders’ remains contrary to

section 182(

b) ofthe Criminal Code. [2] The substantive focus of the Preliminary Inquiry has been on whether there is sufficient evidence upon which a reasonable juryproperly instructed could return a guilty verdict on the charge of first degree murder against either or both of the accused. (United Statesof America v. Sheppard, (SCC), [1977] 2 S.C.R. 1067) [3] In my reasons I will be providing a broad overview of the evidence, an explanation of the test for committal and the role of aPreliminary Inquiry judge, and a discussion of the law as it relates to the elements of the offence of first degree murder.

I will then lookfirst at the admissible evidence against Blake Leggette to assess whether there is sufficient evidence that justifies committal in his case,and then at the admissible evidence against Ms. Henneberry for the same purpose. Loretta Saunders Disappears [4] In February 2014 Loretta Saunders was renting apartment 1003 at 41 Cowie Hill Road. She had been a tenant for at least two yearsand was there when Una Whalen, the superintendent for the building, moved in. Ms. Saunders paid her rent directly to Ms. Whalen asshe was no longer permitted to do so by way of pre-authorized debit. [5] Ms.

Saunders was spending most of her time in February 2014 at the Spring Garden Road apartment of her boyfriend, YalcinSurkultay. She had put an ad in Kijiji and Blake Leggette and Victoria Henneberry moved into the Cowie Hill Road apartment in mid-January.

[ 6 ] On the morning of February 13, 2014 Ms. Saunders was with Mr. Surkultay at his apartment. He testified that around 9 or 10 o’clock in the morning she left with his only set of keys to go and check on the Cowie Hill Road apartment. He did not expect her to be gone long and went back to sleep. [ 7 ] Mr. Surkultay never saw Ms. Saunders alive again. [ 8 ] It was Mr. Surkultay’s evidence that Ms. Saunders drove a blue Toyota Celica car and would have used it to get to Cowie Hill Road.

The Security Camera Footage from 41 Cowie Hill Road [ 9 ] Una Whalen, the building superintendent for 41 Cowie Hill Road, knew Ms. Saunders. She had also met Mr. Leggette and Ms. Henneberry on one occasion when they had inquired about getting a mail box key. She did not know they were living in Ms. Saunders’ apartment. [ 10 ] Ms. Whalen reviewed security video footage ( Exhibit 2, clips 1 through 10 ) from the lobby of 41 Cowie Hill Road for February 13, 2014. She was able to identify Ms. Saunders entering the lobby and waiting for an elevator. She described Ms.

Saunders having a very distinct walk and a tendency to flip her hair with her hands, characteristics that enabled her to identify Ms. Saunders in the video. [ 11 ] The security video shows Ms. Saunders get into an elevator. The door closes behind her. Ms. Whalen testified that she reviewed all of the February 13 footage for this security camera and did not see Ms. Saunders again. [ 12 ] Ms. Whalen readily identified Blake Leggette and Victoria Henneberry on the security video clips from the building lobby. She also made an in-dock identification of them. In the video clips Mr. Leggette and Ms.

Henneberry can be seen wearing jackets that match jackets seized at their arrest and photographed. ( Exhibit 13, D/Cst. Sandy Johnston Photo Book

Part 1 of 3, photographs 21 (Leggette’s coat) and photographs 23 – 25 (Leggette’s camouflage patterned jacket); ( Exhibit 15, D/Cst. Sandy Johnston Photo Book

Part 2 of 3, photograph 148 (Henneberry’s teal-coloured jacket) [ 13 ] The security footage captures Mr. Leggette and Ms. Henneberry coming and going through the building lobby. They first leave the building together after Ms. Henneberry steps into the lobby from the elevator with what could be inferred to be a computer box under her arm. Mr. Leggette has been waiting inside by the front door. ( Exhibit 2, clip 3 ) They then return to the building, cross the lobby and enter an elevator together. ( Exhibit 2, clip 4 ) [ 14 ] In Clip 5, Mr. Leggette can be seen coming off the elevator with a large black hockey bag.

He carries it from the elevator with both hands, putting it down as soon as he steps in to the lobby. He gets a better grip on the bag and takes it out the front door. It is apparent that the bag is heavy and unwieldy. [ 15 ] When Mr. Leggette re-enters the lobby he is carrying a small white bag. Ms. Whalen testified that the direction he heads in is toward the main garbage room. He then walks back across the lobby and gets into an elevator with nothing in his hands. [ 16 ] In clips 8 and 9 Mr.

Leggette can be seen carrying luggage off the elevator and out through the front door - a pink suitcase and red duffle bag in clip 8 and a darker bag in clip 9 - that very closely resemble luggage seized by Ontario Provincial Police when Mr. Leggette and Ms. Henneberry were arrested. ( Exhibit 13, D/Cst. Sandy Johnston Photo Book

Part 1 of 3, photographs 64 and 65 – red duffle; Exhibit 15, D/Cst. Sandy Johnston Photo Book

Part 2 of 3, photographs 111 – pink suitcase and photograph 119 – grey camouflage-print duffle) [ 17 ] The last security camera sighting of Mr. Leggette and Ms. Henneberry at 41 Cowie Hill Road captures them coming out of an elevator carrying a number of items that look like personal possessions. They leave together through the main door. Ms. Whalen viewed the balance of the February 13 footage from the lobby security camera and did not see them return. [ 18 ] Each time Mr. Leggette and Ms. Henneberry left through the front door of 41 Cowie Hill Road, they turned right. Ms.

Whalen testified that this was in the direction of the upper parking lot for the building. The upper parking lot for the building is where Ms. Saunders’ assigned parking spot was located. Other Security Camera Footage [ 19 ] Mr. Leggette and Ms. Henneberry in a blue Toyota Celica appear on security camera footage for February 13, 2014 at Tim Hortons and Sobeys on the Bedford Highway. They also appear on the security camera of an electronics shop, The Source, in the Halifax Shopping Centre. ( Exhibit 5 ) As they wait to be served at the cash, Mr. Leggette is holding a box that closely resembles the box Ms.

Henneberry carried out of 41 Cowie Hill Road. The trade insignia “HP” is visible on the box. A receipt from The Source was subsequently seized by police from Ms. Henneberry’s possessions. ( Exhibit 16 ) It is dated February 13, 2014 at 13:17:20 hours. It is a “debit crd ref” – debit card refund – for $462.40. Under “additional comments” on the receipt, “didn’t have enough power” has been typed. It is reasonable to infer that after Mr. Leggette and Ms. Henneberry left 41 Cowie Hill Road on February 13, they went to The Source and returned a computer which netted them a refund of $462.40.

The Discovery of Tires in the Upper Parking Lot of 41 Cowie Hill Road [ 20 ] On February 19, 2014 D/Cst. Andre Habib was tasked to photograph two tires that were lying on the edge of the upper parking lot of 41 Cowie Hill Road. ( Exhibit 22, photographs 4 – 8 ) It was a snowy night and there was snow down. When D/Cst. Habib moved the tires there was bare ground underneath from which it could be inferred that they had been placed there before fresh snow had accumulated. Locating Ms. Saunders’ Car and Her Body

[21] On February 18, Ontario Provincial Police located Ms. Saunders’ car in Harrow, Ontario. At the residence where the car wasparked, Mr. Leggette and Ms. Henneberry were arrested for possession of stolen property, including the vehicle. Also found in theirpossession was Ms. Saunders’ Scotiabank client card (Exhibit 13, D/Cst. Sandy Johnston Photo Book

Part 1 of 3, photographs 30 & 31)and other pieces of identification relating to her. (Exhibit 15, D/Cst. Sandy Johnston Photo Book

Part 2 of 3, photograph 143) [22] Mr. Leggette and Ms. Henneberry were returned to Nova Scotia in custody for questioning about Ms. Saunders who had beenreported missing by her family and Mr. Surkultay. [23] Ms. Henneberry gave a cautioned statement to police on February 26, 2014. Later that day, with Ms. Henneberry’s assistance, Ms.Saunders’ frozen body was found in a wooded area just off the TransCanada Highway near Salisbury, New Brunswick. It was in a largeblack hockey bag. Once the hockey bag was cleaned of snow at the Saint John morgue, a Greyhound baggage tag became obvious.

Itwas dated January 16, 2014 with a trip destination of Halifax and the name “Victoria Henneberry.” (Exhibit 27, D/Cst. Habib PhotoBooklet of March 2, 2014, photograph 27) Forensic Evidence Obtained from Ms. Saunders’ Body [24] Once Ms. Saunders’ body was removed from the hockey bag it could be seen that her head was completely encased in plastic clingwrap. The photographs from the autopsy (Exhibit 26) show that the cling wrap was tightly wound, flattening and distorting Ms.Saunders’ features, particularly her nose and mouth. [25] Forensic investigators identified 11 distinct layers to the cling wrap.

The layer lying next to Ms. Saunders’ skin was labeled the 11th layer. Det/Cst. Sandy Johnston, a qualified forensic investigator and fingerprint examiner, who was qualified at the PreliminaryInquiry to give opinion evidence on the identification, examination, and comparison of fingerprint evidence, obtained a viable fingerprintfrom the tenth layer of cling wrap. She compared this latent print to a known fingerprint of Blake Leggette and found a match to Mr.Leggette’s left ring finger. [26] Ms. Saunders’ body yielded another piece of evidence of interest to forensic investigators.

A broken portion of a twig was found inher hair. Broken twigs from a decorative arrangement of twigs were located by investigators on the floor of the dining room of Ms.Saunders’ Cowie Hill Road apartment. (Exhibit 28, D/Cst. Marshall Hewitt Photo Booklet of February 19 - 21, 2014,

Part 1 of 3,photograph 21) Forensic investigators matched a piece of broken twig from the dining room floor to the broken twig found in Ms.Saunders’ hair. The pieces fitted together in perfect re-alignment. (Exhibit 17, D/Cst. Sandy Johnston Photo Book

Part 3 of 3,photographs 212 – 217) Evidence Obtained from the Apartment at 41 Cowie Hill Road [27] Police investigators located an empty box of Glad brand cling wrap tucked away on a counter in Ms. Saunders’ kitchen at 41Cowie Hill Road. (Exhibit 24, D/Cst. Andre Habib Photo Booklet of February 24, 2014, photographs 2 - 4) Also located was a tornplastic Sobeys bag in two pieces. This was found in the living room. (Exhibit 17, D/Cst. Sandy Johnston Photo Book

Part 3 of 3,photographs 190 – 193) The cling film and Sobeys bag were photographed on site and once investigators had removed them from theapartment. (Exhibit 17, D/Cst. Sandy Johnston Photo Book

Part 3 of 3, photographs 163 – 165 (empty cling wrap box); photographs 205– 207(torn pieces of Sobeys bag) [28] The evidence I have just reviewed is admissible against both Mr. Leggette and Ms. Henneberry. I will now review the test forcommittal and then the elements of the offence of first degree murder before I examine the issue of committal in relation to eachaccused. The Test for Committal [29] A preliminary inquiry is not a trial. Its primary function is to determine whether the Crown has sufficient evidence to warrantcommitting the accused to trial.

The Supreme Court of Canada has said a preliminary inquiry is “a pre-trial screening procedure aimed atfiltering out weak cases that do not merit trial.” (R. v. Hynes, 2001 SCC 82 , [2001] S.C.J. No. 80, paragraph 30) The Court hasalso said that, “The purpose of a preliminary inquiry is to protect the accused from a needless, and indeed, improper, exposure to a publictrial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” (Skogman v. The Queen, (SCC), [1984] S.C.J.

No. 32, page 8 (Q.L. version)) [30] Section 548(1) of the Criminal Code provides that an accused shall be committed to trial, following a preliminary inquiry, if thereis sufficient evidence and shall be discharged if, on the whole of the evidence, "no sufficient case is made out." It is a jurisdictional errorto commit an accused to trial where there is no evidence on an essential element of the charge. (R. v. Savant, 2004 SCC 77 ,[2004] S.C.J. No. 74, paragraph 16) [31] Section 548(1)(

b) requires that a preliminary inquiry judge consider the whole of the evidence before determining that there is nosufficient case to be made for committal. The statutory language in section 548(1)(

a) establishing the power “to put the accused on trial”does not refer to the preliminary inquiry judge having to consider “the whole of the evidence” for committal and speaks instead of“sufficient evidence” as the requirement. As Code, J. of the Ontario Superior Court of Justice has noted, it has not yet been decidedwhether a preliminary inquiry judge committing an accused to trial must have considered all of the evidence if there is sufficientevidence for committal. (R. v. Badakhshan, [2013] O.J. No. 2410 (Ont.

S.C.J.), paragraphs 3, 14 - 18) In any event, I hope I will havedone so in these reasons. [32] As I have mentioned already, the question to be asked in considering the issue of committal is "whether or not there is anyevidence upon which a reasonable jury, properly instructed, could return a verdict of guilty." (United States of America v. Sheppard, (SCC), [1977] 2 S.C.R. 1067) Limited Weighing – Whether the Evidence if Believed Could Reasonably Support an Inference of Guilt

[33] Where there is direct evidence as to every element of the offence, the accused must be committed to trial. In a circumstantial case,the preliminary inquiry judge must engage in a limited weighing of the evidence in the sense of assessing whether it is reasonablycapable of supporting the inferences that the Crown asks the jury to draw. (R. v. Arcuri, 2001 SCC 54 , [2001] S.C.J. No. 52,paragraph 23) [34] In assessing the evidence tendered for committal, the preliminary inquiry judge does not assess credibility, the quality andreliability of the evidence, or make findings of fact, which are trial functions.

The question to be asked is whether the evidence ifbelieved could reasonably support an inference of guilt. (Arcuri, paragraphs 23 and 30) The judge must recognize the possibleinferences that could be drawn from the facts at a trial and assess their reasonableness. Where more than one inference can be drawnfrom the evidence, only the inferences that favour the Crown are to be considered. (Sazant, paragraph 18) In the event of competinginferences, the inference advanced by the Crown must be the inference that prevails.

It is a jurisdictional error for a preliminary inquiryjudge to weigh the evidence and make a finding based on her view of the strength of the competing inferences. The preliminary inquiry“is not the forum for weighing competing inferences or selecting among them. That is the province of the trier of fact at trial.” (R. v.Campbell, (ON CA), [1999] O.J. No. 4041 (C.A.), paragraph 7, cited in R. v. Sazant, paragraph 23) [35] A difficult inference is not necessarily unreasonable or illogical. (R. v. Katwaru, (ON CA), [2001] O.J.

No.209 (C.A.), paragraph 40) Ducharme, J. has noted that in the context of the limited weighing done by a preliminary inquiry judge,“inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn.” (R. v. Munoz, (ON SC), [2006] O.J. No. 446 (Ont. S.C.J.), paragraph 21, cites omitted) [36] If the inferences urged by the Crown “are within the field of inferences that could reasonably be drawn, the preliminary inquiryjudge must commit for trial even if those inferences are not the inferences that the preliminary inquiry judge would draw.” (R. v.Hawley, [2012] O.J.

No. 4927(C.A.), paragraph 10) Inference versus Speculation [37] There is a considerable difference between inference and speculation. Inferences are drawn from facts which are supposed oradmitted to be true. Drawing an inference involves a process of reasoning: “…a fact or a proposition sought to be establish[ed] isdeduced as a logical consequence from other facts…already proved or admitted.” (R. v. Latif, [2004] O.J. No. 5891 (Ont.

S.C.J.),paragraph 4) In the context of a preliminary inquiry, a fact or proposition sought to be established is deduced as a logical consequencefrom other facts, assumed to be true or admitted. [38] An inference “which does not flow logically and reasonably from established facts cannot be made and is condemned as conjectureand speculation.” (R. v. Morrissey, (ON CA), [1995] O.J. No. 639(C.A.), paragraph 52) The Sufficiency of the Evidence and the Crown’s Ultimate Burden [39] In R. v. Charemski, (SCC), [1998] S.C.J.

No. 23, McLachlin, J. (as she then was) in dissent tied the sufficiency ofthe evidence requirement in the context of a directed verdict to the ultimate burden on the Crown to prove the case beyond a reasonabledoubt. The test on a directed verdict is the same as the test for a committal to trial. (Arcuri, paragraph 21) McLachlin, J.’s statements inCharemski have been applied in the preliminary inquiry committal-to-trial context, for example, by the Ontario Court of Appeal in R. v.Turner, 2012 ONCA 570 , [2012] O.J. No. 4088.

As the Court in Turner noted, McLachlin, J. “made it clear that the sufficiencyof evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt.” TheTurner Court quoted McLachlin, J: … “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to“sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt.

Thismust be constantly borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establishthe essential elements of the case. (Charemski, paragraph 35) [40] Although not quoting this precise paragraph from Charemski, our Court of Appeal in R. v. Beals has followed McLachlin, J.’sassessment of how “sufficient evidence” must be considered. In Beals it was recognized that the “limited weighing” exercise is not aformulaic or surgically precise one. (R. v. Beals, 2011 NSCA 42 , [2011] N.S.J.

No. 231, paragraph 36) The Elements of the Offence of First Degree Murder [41] First degree murder is an intentional killing that is both planned and deliberate. “Planned” means that “the scheme has beenconceived and carefully thought out before it was carried out” and “deliberate” means considered, not impulsive.” (R. v. Nygaard, (SCC), [1989] S.C.J.

No. 110, paragraph 17) A plan for the purposes of first degree murder is “a calculated scheme or designthat has been carefully thought out, and the nature and consequences have been considered and weighed.” “Deliberate” includes theconcepts of being slow in deciding and cautious, implying that the accused must take time to weigh the advantages and disadvantages ofhis or her intended action.

In Nygaard, the Supreme Court of Canada said the following about first degree murder: “Throughout historythe idea that one human being could cold-bloodedly plan and deliberate upon the killing of another has been repugnant to all civilizedsocieties and has tended to be considered as the most reprehensible of violent crimes.” (Nygaard, paragraph 28) [42] The elements of planning and deliberation must be present before the act of murder commences.

For example, a strangulation thattakes four to five minutes to complete does not constitute the deliberation that is required for a murder to be classified as first degreemurder. (R. v. Ruptash, 1982 ABCA 165 , [1982] A.J. No. 424 (C.A.), paragraph 5) It is not enough that a killer have taken aweapon in hand: this does not alone amount to having deliberated on a plan, “especially where the weapon is at the ready.” (Ruptash,paragraph 6) [43] A murder committed on a sudden impulse and without prior consideration, even though the intent to kill is clearly proven, would

not constitute a planned murder. (R. v. Smith, (SK CA), [1979] S.J. No. 476 (C.A.), paragraph 28) In Smith, theevidence of a “cruel and sadistic” shooting of the victim in cold blood was found not to show “the implementation of a previouslydetermined design or scheme.” (Smith, paragraph 31) The Court went on to say: “It may well be that the killing was deliberate.However, even if it was, there could only be a verdict of first degree murder if the evidence established as well that the murder wasplanned.” (Smith, paragraph 32) After-the-Fact Conduct and Culpability for Murder [44] In the case of Mr.

Leggette and Ms. Henneberry there is evidence from which it can be reasonably inferred that soon after Ms.Saunders went to 41 Cowie Hill Road on February 13, they left in her car with her body in a hockey bag, and their belongings, and droveto Ontario. It is reasonable to infer that on the way they disposed of the hockey bag in a cluster of trees by the highway where it wasfound. This is after-the-fact conduct evidence. It is well-established that after-the-fact conduct cannot be used to determine an accused’slevel of culpability. [45] Ms.

Driscoll acknowledged in her final submissions that the after-the-fact conduct of Blake Leggette and Victoria Henneberrycannot support an inference concerning intent. A properly instructed jury would have to be told this. However as I will later discuss,after-the-fact conduct can be relevant to the issue of whether a murder was planned and deliberate. Could a Reasonable Jury, Properly Instructed Return a Verdict of Guilt against Blake Leggette for the First Degree Murder ofLoretta Saunders? [46] A reasonable jury properly instructed could infer that when Ms.

Saunders arrived at 41 Cowie Hill Road, Blake Leggette andVictoria Henneberry were at the apartment. Evidence admissible only against Mr. Leggette describes what happened when Ms. Saunderswas in the apartment. This evidence comes from notes the Crown alleges Mr. Leggette made between March 1 and April 6, 2014 whilein custody at the Central Nova Scotia Correctional Facility. (I understand for the purposes of the Preliminary Inquiry it is conceded thatMr.

Leggette made the notes.) I admitted all 35 pages of the notes (Exhibit 37) into evidence after a voir dire in which I consideredwhether they were protected by solicitor-client or litigation privilege. I found none of the notes had any of the constituent requirements toqualify for privilege. (R. v. Leggette and Henneberry, 2014 NSPC 115) [47] According to Mr. Leggette’s notes, as of February 12, 2014, money was a problem for him and Ms. Henneberry. He was havingtrouble getting work and they were hard up. He talked about his nerves being “shot” from arguing with Ms.

Henneberry; he would havedone anything for her, but said: “Never thought I would kill for her…” (Exhibit 37, page 2) [48] Woven through the notes is the theme of Mr. Leggette pinning “the murder” on Ms. Henneberry. He said he told a lawyer whocame to see him in jail that “Victoria is the one who commited (sic) the murder while I was in the shower” and concluded with “hebelieves me.” (Exhibit 37, page 8) He also recorded how he “purposely stated that all the inmates should get off my back, since I’m notthe one who killed Loretta Saunders.

Victoria is the one, which is what we want people to believe, since I’ve said nothing and Victoria isspeaking like a leaky faucet…” (Exhibit 37, page 8) Mr. Leggette also made reference to “accessory after the fact” being relevant to thedefence it can be inferred he hoped to mount to the murder charge. (Exhibit 37, page 12) [49] In an entry dated April 6, 2014, Mr. Leggette expressed the depth of his antipathy toward Ms.

Henneberry, saying: “I hate her witheverything in me, and with all the god’s (sic) of this earth she will be going away for 25 to life, no matter what the truth is.” (Exhibit 37,page 16) He had said in an earlier entry dated March 18: “I don’t care if she isn’t the one who actually killed Loretta, it’s what I willhopefully make everyone believe. That is how I will make her pay for the last 3 years.” (Exhibit 37, page 12) [50] In his notes, Mr. Leggette not only wrote of wanting to ensure that Ms. Henneberry took the fall for Ms. Saunders’ murder, he alsospoke explicitly about his role.

In an entry dated March 20, Mr. Leggette wrote: “Basically I am growing impatient, I’m angry at myselffor killing Loretta, and the fact I’m going to be blaming Victoria for it, so I don’t do life in prison, but Darcy [referring to his cell mate]says she deserves it.” He also said in another passage: “In the end, I murdered a woman and even now as I did that day, it does notbother me. I think I wanted to do it as much a (sic) Victoria wanted me to.” (Exhibit 37, page 29) [51] Most significantly, Mr. Leggette recorded in his notes a detailed description of Ms. Saunders’ murder under the heading “M Day”.Mr.

Leggette’s description includes the following details: • That Ms. Saunders came to the apartment between 10 and 11 a.m., asking for the rent money; • Mr. Leggette told Ms. Saunders they had the rent; • After some initial “chit chat” with Ms. Saunders, Mr. Leggette walked “into the room to speak with Victoria” and asked her:“Should I do it.” • Ms. Henneberry’s response made Mr. Leggette angry and he said “really. ok”; [52] Mr.

Leggette’s notes document the following events as having happened next: I walked out to the living room where Loretta was sitting on the couch, come up behind her all in one motion grabbed her by the throatand proceeded to choke her. She kicked off the couch and we ended up in the dining room, while I constantly had her by the throat. Forsome reason it wasn’t working, In my mind once I started I shouldn’t stop. I asked Victoria for assistance, first with a plastic bag, Lorettaput up a fight and tore 3 different bags I tried to use. Finaly (sic) I hit her head twice on the floor to knock her out which worked.

Iproceeded to wrap her head in plastic wrap to make sure she was actually dead. After she was officially passed away, I proceeded to place her in the hockey bag, cleaned up her Id gave Victoria her phone. I proceeded

to get the car ready, taking the tires out, and placing them in front of the car, and cleaning out garbage. Carried her down the hallway,into the elevator to the main floor. Went outside, placed her on the sidewalk, and proceeded to get the car to bring to the body. (Deadweight is heavier.) Parked the car, and proceeded to bring our stuff that Victoria and I packed to the car. [53] Mr. Leggette’s description ends with him indicating that he and Ms. Henneberry then got in Ms. Saunders’ car and left. [54] It will be for a jury to decide what to make of Mr.

Leggette’s notes if they are admitted into evidence at trial. I want to make it veryclear that Mr. Leggette’s notes are not admissible evidence against Ms. Henneberry. In a joint trial a properly instructed jury would haveto be told that. The notes have played no role in my assessment of the issue of committal in Ms. Henneberry’s case. [55] The notes are direct evidence of Mr. Leggette’s involvement in Loretta Saunders’ murder. They are consistent with other evidence– the Cowie Hill Road security video footage, the torn Sobeys bag, the cling wrap around Ms.

Saunders’ head, and the MedicalExaminer’s Report (Exhibit 1) that found “blunt force injuries to head, face, neck (predominantly) and extremities [and] acute pulmonaryedema”, and concluded that Ms. Saunders’ death was caused by “Smothering and/or Manual Strangulation.” Mr. Leggette’s M daydescription of the struggle to kill Ms. Saunders moving from the couch in the living room to the dining room floor is consistent with thephysical layout of the Cowie Hill Road apartment – the proximity of the living room to the dining room. (Exhibit 28, D/Cst. MarshallHewitt Photo Booklet of February 19 - 21, 2014,

Part 1 of 3, photographs 10 and 16) It is also consistent with Ms. Saunders getting apiece of broken twig from the twig arrangement in the dining room stuck in her hair. [56] That there is sufficient evidence upon which a reasonable jury, properly instructed, could return a guilty verdict against Mr.Leggette for Loretta Saunders’ murder is obvious. But is there sufficient evidence that the murder was planned and deliberate such that acommittal to trial on the charge of first degree murder is justified? [57] There is a further piece of evidence admissible against Mr. Leggette that I will now discuss.

It is a cell phone video (Exhibit 6)made by Mr. Leggette on February 8, 2014 at the 41 Cowie Hill Road apartment. Ms. Henneberry can be seen and heard on the video.Mr. Leggette’s presence is evident from his voice. [58] The video is about nine and a half minutes long. Mr. Leggette and Ms. Henneberry are having a nasty fight. Ms. Henneberry looksand sounds quite intoxicated. Mr. Leggette tells her he is video-taping her to show how she behaves when she is drunk. He accuses her ofhaving punched and kicked him. Ms. Henneberry calls Mr. Leggette “a stupid piece of shit” and tells him to get away from her.

She alsospits at him. This does not deter Mr. Leggette and he relentlessly videotapes Ms. Henneberry even when she goes into the bathroom for apee. [59] On the toilet Ms. Henneberry appears to be crying. She tells Mr. Leggette she will not want to be with him when she is sober. Hewants to know what he has done that is so wrong that she is reacting this way. Ms. Henneberry then introduces a completely new topic,one that was not under discussion or implied in the previous eight minutes: “You can’t even say that you really want to kill Loretta.” Ms.Henneberry tells Mr.

Leggette: “You said that you want to kill her earlier.” [60] When Mr. Leggette reactes to this, quite calmly, by repeatedly asking Ms. Henneberry: “When did I say that?” she lashes out andcalls him “a fucking liar”, yelling at him, “Stop lying Blake!” [61] In a tone that could be viewed as venomous, Ms. Henneberry tells Mr. Leggette: “I don’t lie about who I want to kill and maybeyou should stop lying too.” He asks her: “Who do you want to kill then?” Ms.

Henneberry does not answer but has more to say to Mr.Leggette about what her comments suggest was something he said on a prior occasion: “You’re the one who says ‘I want to kill Loretta,I can’t wait until she comes back here.’” Ms. Henneberry goes on to say to Mr. Leggette: “You told me earlier today whenever she washere, ‘Holy fuck Vicky I wish you would have said no.’ [62] I have had to carefully consider what, if any use can be made of this video on the issue of Mr. Leggette’s committal to trial. Canthese statements by Ms. Henneberry to Mr. Leggette, prior to Ms.

Saunders’ murder, be admitted into evidence against him? [63] The video animates the issue of whether Mr. Leggette adopted the statements made by Ms. Henneberry indicating that he wantedto kill Ms. Saunders. Without adoption, Ms. Henneberry’s statements are simply hearsay and inadmissible. (R. v. P.K., [1980] A.J. No.628, paragraph 34 (C.A.) Generally an accused may be held to have accepted a statement by another: (1) by assenting to it; (2) byinference from his failure to deny it; or (3) by inference from his very denial. [64] The issue of whether Mr. Leggette adopted the statements made by Ms.

Henneberry in the video is ultimately a trial issue. (R. v.Scott, 2013 MBCA 7 , [2013] M.J. No. 24, paragraphs 11 - 24 (C.A.)) The law requires “that before an allegedly adoptedstatement can be put to a jury, the trial judge must find that there is sufficient evidence from the which the jury might reasonably inferthat the conduct of the accused amounted to an adoption of the statement.” (R. v.

Tanasichuk, 2007 NBCA 76 , [2007] N.B.J.No. 410, paragraph 110 (C.A.)) Ultimately the jury must conclude that the nature of the statement in the context of the particularconversation would have moved the accused to denounce the assertion made in his presence. It is an error to instruct the jury that astatement by another becomes evidence against the accused simply because the accused was present and was a party to the conversationor acknowledged what was said. (R. v. Moore, (ON CA), [1984] O.J.

No. 134 (C.A.)) [65] Where the trial judge decides that the evidence of the statements should go before the jury, she “is still obliged to instruct the jurythat it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent thatthey were adopted should the jury accept them as true. In this respect, the jury must consider all the circumstances under which thestatement was made.” (R. v. Warner, (ON CA), [1994] O.J.

No. 2658, paragraphs 20 - 22 (C.A.)) [66] These principles govern how I must consider the Henneberry/Leggette exchange on the cell phone video. Mr. Leggette’ssubmission is that he never adopted the statements being made by Ms. Henneberry. I find that he did. In the face of statements that hehad previously expressed a desire to kill Loretta Saunders, Mr. Leggette did not deny having done so. He did not, for example, say to Ms.Henneberry: “I never said such a thing! You are lying. I don’t know what you are talking about.” Instead he challenged the intoxicatedMs.

Henneberry to pinpoint when this had been said: “When did I say that?” he asked her several times in succession. Mr. Leggette also

did not respond with a denial when Ms. Henneberry went on to say that he had talked about wanting to kill Ms. Saunders the next timeshe returned to the apartment. These were inflammatory claims by Ms. Henneberry. A jury could reasonably infer that a denial wouldhave been “the only reasonable course of action” if they were not true. (Warner, paragraph 20) [67] The cell phone video is only one piece of the evidence against Mr. Leggette. From this evidence and what Mr.

Leggette describedin his M day notes, which as I have already mentioned are consistent with forensic and other evidence, I find that a reasonable jury,properly instructed, could be satisfied beyond a reasonable doubt (which is what would be required to return a verdict) that Mr. Leggettehad a plan for murdering Ms. Saunders and, at least in the moments before he executed the plan, deliberated on it. His deliberationsincluded, according to the M day notes, a brief exchange with Ms. Henneberry – Should I do it? – he says he asked her.

This is evidencefrom which a jury could infer that he was weighing the advantages and disadvantages of implementing his plan. [68] I find a jury could also reasonably infer that Mr. Leggette deliberated on the plan after he formulated it sometime around February8 and before Ms. Saunders arrived at the apartment on February 13 looking for the rent money. [69] It is reasonable to infer from Mr. Leggette’s M day notes and the cell phone video that before Ms. Saunders arrived at theapartment on February 13, he had formulated a plan to kill Ms. Saunders by asphyxiating her.

It is a reasonable inference that manualstrangulation was the original plan. He and Ms. Henneberry had no money and owed Ms. Saunders rent. According to the M day notes,Mr. Leggette lied to Ms. Saunders when she asked if the rent money was even available. It would be reasonable for a jury to infer thatthis was part of Mr. Leggette’s calculated scheme of murder: the lie being a ruse to placate Ms. Saunders. It would keep her at theapartment waiting for the rent issue to be resolved which provided the opportunity for Mr. Leggette to kill her.

His plan in place, Mr.Leggette deliberated and then pounced. [70] The best description for what happened when Mr. Leggette embarked on his murderous enterprise is that the manual strangulationdidn’t go according to plan. Mr. Leggette did not panic, and it is reasonable to infer from his reaction that his attack on Ms. Saunders wasnot impulsive. According to the M day notes and supported by the forensic evidence, Mr. Leggette coolly resorted to alternativemeasures for fatally cutting off Ms. Saunders’ air supply. A jury could reasonably infer that the torn plastic Sobeys bag, the banging ofMs.

Saunders head on the floor, and the cling wrap were the execution of an adapted plan. The plan Mr. Legette had made to kill Ms.Saunders the next time she came to the apartment. required a few additional steps but Mr. Leggette stayed the course and it wasimplemented successfully. [71] Before I finish with Mr. Leggette, I want to briefly address a point made by Mr. Sheppard in his closing submissions. Mr.Sheppard pointed to a portion of Ms. Henneberry’s statement to police where she told Sgt. MacNeil that when she was in the bedroomafter Ms. Saunders had arrived, Mr.

Leggette “took off down the hallway into the living room.” Mr. Sheppard says that this can be usedas evidence that Mr. Leggette had no plan to murder Ms. Saunders and was not engaged in deliberating about doing so. The Crown raisedthe question of whether the statement of Ms. Henneberry, which it is agreed is inadmissible against Mr. Leggette, can be used by Mr.Leggette to support an inference he wants drawn. [72] It is my view that Ms. Henneberry’s statement cannot be used in relation to Mr. Leggette for any purpose. In relation to him, it isinadmissible.

He cannot cherry-pick what he wants from it and otherwise rely on it being inadmissible. I find that a properly instructedjury would have to be told that Ms. Henneberry’s statement is not admissible evidence in relation to Mr. Leggette and could not be usedto draw inferences for or against him. [73] In conclusion, I find that a reasonable jury, properly instructed, could return a verdict of first degree murder against Blake Leggette.Accordingly I commit him to stand trial as charged, along with the charges I mentioned at the start of these reasons.

Could a Reasonable Jury, Properly Instructed Return a Verdict of Guilt against Victoria Henneberry for the First Degree Murder ofLoretta Saunders? [74] The Crown has submitted that Ms. Henneberry was a party to the murder of Ms. Saunders and should be committed to trial for firstdegree murder on this basis. In addressing this issue I must consider only the evidence admissible against Ms. Henneberry. [75] The legal principles I articulated earlier in these reasons apply equally to the issue of Ms. Henneberry’s committal to trial.

And allthe evidence I have reviewed is admissible against her with the exception of Mr. Leggette’s notes (Exhibit 37) and Mr. Leggette’sstatements in the cell phone video. Ms. Henneberry’s statements on the cell phone video are admissible against her to the extent they arerelevant. [76] Ms. Henneberry could be culpable as a party to Ms. Saunders’ murder if she aided or abetted Mr. Leggette in committing it.(section 21(1)(

b) and (c), Criminal Code) Aiding involves assisting or helping the perpetrator. Abetting includes “encouraging,instigating, promoting or procuring the crime to be committed.” (R. v. Briscoe, 2010 SCC 13 , [2010] S.C.J.

No. 13, paragraph14) The assistance rendered must be “for the purpose of aiding the principal offender to commit the crime” (Briscoe, paragraph 15,emphasis in original) and the aider must have “intended to assist the principal in the commission of the offence.” (Briscoe, paragraph16) [77] A person who is alleged to have aided in a first degree murder must be shown to have known that the murder was planned anddeliberate. (Briscoe, paragraph 17) The Crown is not required to prove that the aider or abettor had the same mens rea “as the actualkiller.” All that has to be proven is that “he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts withthe intention of assisting the perpetrator in its commission.” (Briscoe, paragraph 18, emphasis in original) [78] These are the principles a properly instructed jury would have to apply in considering the parties doctrine in relation to Ms.Henneberry.

The issue I will now address is whether there is sufficient evidence that a reasonable jury properly instructed could return aguilty verdict against Ms. Henneberry for first degree murder, as a party?

[ 79 ] Evidence admissible against Ms. Henneberry indicates that in the ten days before Ms. Saunders was murdered, Ms. Henneberry was having financial problems. By February 3, she had sold her phone “for food” and was waiting for her Ontario student loan to arrive. ( Exhibit 33, email of February 3, 2014, 11:16 a.m. to I.B. ) [ 80 ] Two days later, in another email to her old friend, I.B., who was living in the Annapolis Valley, Ms. Henneberry mentioned Ms. Saunders and the rent issue: “Loretta can’t pay her rent she says, expects that I can & will (Not likely lol)”. She asked if she and Mr.

Leggette could go and stay “As to avoid any unnecessary drama?” ( Exhibit 32, email of February 5, 2014, 11:50 a.m. ) It is a reasonable inference that Ms. Henneberry was looking to avoid “unnecessary drama” with Ms. Saunders over the unpaid rent. Ms. Henneberry told I.B. she had no phone, was broke, and didn’t even have money for food. ( Exhibit 32, email of February 5, 2014, 12:04 p.m. to I.B. ) [ 81 ] By February 5, Ms. Henneberry was telling I.B. that she and Mr. Leggette were planning to leave Nova Scotia once her money came in. In this email, Ms.

Henneberry reiterated her position on the issue of the rent for Ms. Saunders’ apartment: “She can’t even pay her rent this month & like expects that my OSAP will cover her half, that’s NOT happening like ever! ha ha!” ( Exhibit 33, email of February 5, 2014, 11:09 a.m. to I.B. ) [ 82 ] It was three days later, on February 8 that the cell phone video was made. Ms. Henneberry’s cell phone video statements indicate that by February 8 she knew Mr. Leggette was contemplating a plan to kill Ms.

Saunders. [ 83 ] Evidence of motive is relevant evidence, even though the Crown does not have to advance evidence of motive to secure a committal to trial for murder, nor prove motive to obtain a conviction. In addition to Ms. Henneberry’s position on the issue of the rent - that she wasn’t going to pay it - there is some evidence in this case that Ms. Henneberry harboured animosity toward Ms. Saunders. She referred to Ms. Saunders as “a bitch” in an email to I. B.. ( Exhibit 33, email of February 4, 11:49 a.m. ) The day before Ms. Saunders had emailed I.B. and told him that Ms.

Saunders, “…isn’t who she has claimed to be and we aren’t impressed with what we found out about her.” ( Exhibit 33, email of February 3, 2014, 11:16 a.m. ) In this email, Ms. Henneberry called Ms. Saunders “a sneaky bitch.” On February 5, Ms. Henneberry commented to I.B. about Ms. Saunders’ “bitchy ass attitude.” ( Exhibit 32, email of February 5, 2014, 12:00 p.m. ) [ 84 ] The evidence of Ms. Henneberry’s attitudes toward Ms. Saunders does not support an inference that she wanted Ms. Saunders dead. But it could support an inference that Ms.

Henneberry was willing to be part of a plan that eliminated the need to pay the rent and afforded her a way to get out of the dead-end existence she was leading in Nova Scotia. As the evidence indicates, after Ms. Saunders was killed in the apartment, Ms. Henneberry left Nova Scotia with Mr. Leggette in Ms. Saunders’ car, with her cell phone and bank card. [ 85 ] Ms. Henneberry was interrogated by police on February 26, 2014. Her statement was admitted into evidence by consent for the purposes of the preliminary inquiry.

It is only admissible as evidence against her and, as I mentioned earlier in these reasons, is inadmissible in relation to Mr. Leggette. [ 86 ] Ms. Henneberry was interrogated by Sgt. Anthony McNeil and offered a description of what had happened at the apartment on February 13. She said that when Ms. Saunders arrived, she had been doing dishes. Ms. Saunders sat on the couch and asked for the rent. Ms. Henneberry told her she did not have the rent because she had lost her bank card. This, she said to Sgt. McNeil, was a lie to cover up the fact that she didn’t have the money.

She went into the bedroom to call the bank. [ 87 ] As I will explain, I find it reasonable to infer that the lie had another purpose. [ 88 ] According to Ms. Henneberry’s statement, Mr. Leggette had been pacing and then “took off down the hallway to the living room.” ( Exhibit 8, Victoria Henneberry’s February 26, 2014 police statement, page 90 ) She heard Ms. Saunders say: “What the fuck?” and then: “What are you doing? Stop. Help.” Ms.

Henneberry said she was shaking so she “went into the bathroom” because she thought she was going “to puke and stuff.” ( Exhibit 8, Victoria Henneberry’s February 26, 2014 police statement, page 91 ) She told Sgt. McNeil that while Ms. Saunders was being asphyxiated, she was in the bedroom, “sitting there in shocked disbelief.” ( Exhibit 8, Victoria Henneberry’s February 26, 2014 police statement, page 92 ) “Whenever I went out there I started shaking. I couldn’t do anything. I couldn’t even stand.

I had jello legs.” ( Exhibit 8, Victoria Henneberry’s February 26, 2014 police statement, page 92 ) [ 89 ] When asked by Sgt. McNeil to describe how Mr. Leggette killed Ms. Saunders, Ms. Henneberry told him that Mr. Leggette put a Sobeys bag over her head and smothered her. She also mentioned “Saran wrap.” She knew exactly how the killing went down. When asked to explain what happened when Mr. Leggette put the Sobeys bag over Ms. Saunders’ head, the following exchange took place: Ms. Henneberry: He tried suffocating her. Sgt. McNeil: And then what happened? Ms.

Henneberry: He eventually killed her, but I was too busy freaking out. Sgt. McNeil: How did he kill her? When you say he eventually killed her, what do you mean by that? Ms. Henneberry: Asphyxia. Sgt. McNeil: Yeah. Can you demonstrate that to me? What happened? What you saw? Ms. Henneberry: He stopped her breathing. He put a bag over her…(inaudible) Sgt. McNeil: If I’m her, what happens? Where…where are they? Ms. Henneberry: They’re on the floor. ( Exhibit 8, Victoria Henneberry’s February 26, 2014 police statement, page 88 ) [ 90 ] Ms. Henneberry’s description of Ms. Saunders’ murder had Mr.

Leggette committing the killing while she cowered in the bedroom

and bathroom. This description could support the inference that Ms. Henneberry was nothing more than a passive bystander whosepresence did nothing to aid and abet the murder. The leading authority on this point is still R. v. Dunlop and Sylvester, (SCC), [1979] S.C.J. No. 75 in which Dickson, J. (as he then was) held: Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principaloffender;

an act which facilitates the commission of the offence, such as keeping watch on (sic) enticing the victim away, or

an act whichtends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping orbeing ready to assist the prime culprit… [91] The Crown submits the inference that Ms. Henneberry was merely present when Mr. Leggette murdered Ms. Saunders and nothingmore is not the only reasonable inference that a jury could draw. I am satisfied the evidence supports a competing inference which areasonable jury, properly instructed could draw, that is, the inference that Ms. Henneberry had prior knowledge of Mr. Leggette’s plan tokill Ms.

Saunders when she next came to the apartment and was an aider and abettor of that plan. Ms. Henneberry was well aware thatMs. Saunders wanted the rent money. It could be reasonably inferred that the lie about the lost bank card was to stall Ms. Saunders at theapartment so Mr. Leggette could kill her and they could get away. Ms. Henneberry described watching Mr. Leggette “pacing and stuff”before he took off for the living room where Ms. Saunders was waiting on the couch for the rent money issue to be dealt with. (Exhibit 8,Victoria Henneberry’s February 26, 2014 police statement, page 90) When Ms.

Saunders started to cry out, Ms. Henneberry’s narrativedoes not involve her calling out to ask what was going on or checking to see what was happening. She told Sgt. MacNeil she was“shaking” at this point. She went into the bathroom because she thought she was going to throw up. It is a reasonable inference that Ms.Henneberry knew very well what was happening: it made her nauseous but she did not need to investigate. She knew Mr. Leggette hadjust put into motion the previously-discussed plan to rid themselves of Ms. Saunders. These are reasonable inferences a jury could draw. [92] Ms. Henneberry responded to Sgt.

McNeil asking her to tell him what she “saw” by saying: “He stopped her breathing. He put abag over her…(inaudible)…They’re on the floor…” (Exhibit 8, Victoria Henneberry’s February 26, 2014 police statement, page 88) Ms.Henneberry’s description of the details of Ms. Saunders’ murder supports the reasonable inference that she watched at least some of whatwas happening, as a party, and was not simply told later by Mr. Leggette. [93] It could be reasonably inferred by a jury that Ms.

Henneberry was not merely a passive, horrified observer, but acted to aid andabet a pre-planned killing designed to liberate her and Mr. Leggette from owing rent to “a bitch”, gain access to her car and enable themto get out of Nova Scotia. [94] Ms. Henneberry told Sgt. McNeil farther along in the interview that she wished she could “have saved” Ms. Saunders. Sheimmediately followed that statement with: “But I was so angry and I just didn’t want to be in Halifax anymore. We came here and therewas nothing here anymore…I was just angry in general.

I was so angry for coming here…I was angry at Blake for everything.” (Exhibit8, Victoria Henneberry’s February 26, 2014 police statement, page 103) [95] I find a jury could reasonably infer that Ms. Henneberry’s state of mind while Ms. Saunders was being murdered was not one ofhorror and disbelief as she claimed in her statement. She did not tell Sgt. McNeil that she wished she could have saved Ms. Saunders butwas too frightened or frozen with shock. She told Sgt. McNeil that she was very angry - angry about being down and out in Halifax andangry with Mr.

Leggette “for everything”. [96] A reasonable jury, properly instructed, could infer that Ms. Henneberry’s anger had helped oxygenate a plan to kill Ms. Saundersand enabled her participate in it, first by lying to Ms. Saunders about the availability of the rent money, and then by standing by, at theready, while the plan she and Mr. Leggette had discussed – the murder - was executed by Mr. Leggette. Once that was accomplished,Ms. Henneberry was an active participant in the rest of the plan, packing up, taking Ms.

Saunders’ car, cell phone, and bank card, gettingmoney by returning the computer for a refund, and leaving town. This evidence considered in combination with the rest of the evidenceis capable of supporting the inference that the murder of Ms. Saunders was planned and deliberate. (R. v. Poitras, (ON CA), [2002] O.J. No. 25, paragraph 11 (C.A.); R. v. Pan, (ON CA), [1999] O.J. No. 1214, paragraph 246(C.A.)) After-the-fact evidence can be used “as positive evidence of a particular mental state (like planning and deliberation)…” (R. v.Cudjoe, 2009 ONCA 543 , [2009] O.J.

No. 2761, paragraph 91 (C.A.)) [97] In this vein, there is other after-the-fact conduct that is relevant to the issue of whether the murder was planned and deliberate.That evidence is text messages Yalcin Surkultay believed were from Victoria Henneberry. He had been texting Ms. Henneberry’s phoneon February 14 after Ms. Saunders did not return to his apartment as he had expected. It is reasonable to infer that the texts were sent byMs. Henneberry from her cell phone. The Henneberry texts indicated that she had paid Ms. Saunders the rent in cash and that after takingthem – that is, Ms. Henneberry and Mr.

Leggette – grocery shopping, Ms. Saunders had left. (Exhibit 36, Texts 27, 28, 43 and 74) TheHenneberry texts included the suggestion that Ms. Saunders may have gone to Newfoundland. (Exhibit 36, Texts 22 and 74) OneHenneberry text says that “they” had been out “looking for work & viewing some apartments.” (Exhibit 36, Text 37) Mr. Surkultaytestified that he received this text when he had been trying to reach Mr. Leggette and Ms. Henneberry on February 14. [98] It could be reasonably inferred from the texts that Ms. Henneberry wanted Mr. Surkultay to believe she and Mr. Leggette were stillin Halifax.

The Henneberry texts assure Mr. Surkultay that the sender would let Ms. Saunders know to bring his keys and get back tohim. (Exhibit 36, Text 70) The Henneberry texts also include an offer to call Ms. Saunders, with the caveat, “Her phone could be deadthough” because she had forgotten her charger “at the apartment…” (Exhibit 36, Text 73) [99] A reasonable jury properly instructed could infer that the laying of the false trail after Ms. Saunders’ death began the day of themurder, February 13. In the course of February 13, Mr. Surkultay exchanged texts (Exhibit 34) with Ms.

Saunders’ cell phone believinghe was having a conversation with Ms. Saunders that continued late into the evening. Mr. Surkultay testified to becoming increasinglyfrustrated because Ms. Saunders would not tell him where she was or when she was returning. In the early morning hours of the morningof February 14, Mr. Surkultay got a text from Ms. Saunders’ cell phone that read in response to his inquiries: “I wanted to see somefriends and take my mind off shit.” (Exhibit 34, Text 320) This and subsequent texts that came from Ms. Saunders’ phone did not makesense to Mr.

Surkultay although he continued to believe he was conversing with Ms. Saunders.

[ 100 ] This evidence, with the rest of the evidence, could support an inference that Ms. Saunders’ murder was planned and deliberate: that the perpetrators did not want it known that Ms. Saunders had been murdered and not simply taken off capriciously for Newfoundland. ( Poitras , paragraphs 11 – 12 ) This would assist in the getaway, the other component of a plan that required the elimination of Ms. Saunders, the elimination of the rent obligation, and access to the means to leave Nova Scotia – Ms. Saunders’ car. [ 101 ] In conclusion on Ms.

Henneberry, I find that a reasonable jury, properly instructed, could return a verdict of guilt against her as a party to the first degree murder of Ms. Saunders. Accordingly I commit her to stand trial for first degree murder and the other offences I mentioned earlier. [ 102 ] The screening function of the preliminary inquiry is intended to discharge accused where the evidence is not sufficient to support the inferences being advanced by the Crown. My function, in a circumstantial case, is to determine what reasonable inferences could be drawn from the admissible evidence.

Ultimately it will be for a reasonable jury, properly instructed, to decide what inferences to draw from the evidence they hear. As the preliminary inquiry judge, I am amply satisfied there is sufficient evidence in relation to each of Mr. Leggette and Ms. Henneberry that justifies putting them both on trial, as charged, for the first degree murder of Loretta Saunders.