Her Majesty the Queen v. Blake Leggette v. Victoria Henneberry, 2014 NSPC 115

IN THE PROVINCIAL COURT OF NOVA SCOTIA Cite as: R. v. Leggette, 2014 NSPC 115 Date: July 23, 2014 Docket: 2704276 and 2704277 Registry: Halifax Between: Her Majesty the Queen v. Blake Leggette and Victoria Henneberry VOIR DIRE DECISION – SOLICITOR/CLIENT PRIVILEGE Judge: The Honourable Judge Anne S. Derrick Heard: July 22, 2014 Decision: July 23, 2014 Charges:

section 235 of the Criminal Code Counsel: Christine Driscoll and Sean McCarroll, for the Crown Terrance G. Sheppard for Blake Leggette and Patrick Atherton for Victoria Henneberry By the Court: Introduction [1] This decision concerns whether 35 pages of notes made by Blake Leggette that he did not intend to come into the possession of thepolice and the Crown are admissible into evidence against him at this Preliminary Inquiry. Mr. Leggette testified that the notes weremade by him and asserts that they are protected by solicitor-client privilege.

The Crown says they are not. [2] As these reasons will explain, I have concluded that Mr. Leggette’s notes do not fall under the protection afforded solicitor-clientcommunications.

The Jurisdiction of a Preliminary Inquiry Judge [3] As a Preliminary Inquiry judge I have the power to determine the admissibility of evidence in aid of my screening function, that is,the determination I must make as to whether the Crown has sufficient evidence to warrant committing the accused to trial. (section 548,Criminal Code) The question that must be asked in considering the issue of committal is "whether or not there is any evidence uponwhich a reasonable jury, properly instructed, could return a verdict of guilty." (United States of America v.

Sheppard,(SCC), [1977] 2 S.C.R. 1067) [4] While I have the power, as a Preliminary Inquiry judge, to consider the admissibility of evidence under common law principles, Ihave no authority to consider possible Charter violations. Therefore the issue I have determined in this decision is whether notes thatwere seized from Mr. Leggette’s cell are protected by solicitor-client privilege from admission into evidence. Any issues relating to Mr.Leggette’s rights under sections 7, 8, 10(b), 11(d), or 24(2) of the Charter are strictly trial considerations. (R. v. Hynes, 2001 SCC 82, [2001] S.C.J.

No. 80, paragraphs 37 and 38) [5] In sum, an accused can be committed to trial on the basis of evidence that is admissible under common law even if it is later shownthat the evidence was obtained in violation of the accused’s constitutional rights and is excluded at trial. I am not insinuating thathappened in this case nor, as I have said, am I dealing with that issue. [6] I want to make it clear that I have only determined whether notes written by Mr. Leggette are admissible at this PreliminaryInquiry. In the event of a committal to trial, what evidence is admitted at trial is for a trial judge to determine.

Background Facts

[7] On or about February 25, 2014, Blake Leggette and Victoria Henneberry were charged with the first degree murder of LorettaSaunders. They have been held in custody at the Central Nova Scotia Correctional Facility. [8] Between March 1 and April 6, 2014, Mr. Leggette made a series of notes while in custody at the CNSCF. These notes were locatedin his cell on or about April 8, 2014 by correctional officers and turned over to Cst. Jason Hurley, the lead investigator on the LorettaSaunders’ homicide investigation. Cst. Hurley turned the notes over to the Crown who disclosed them to Mr.

Sheppard, representing Mr.Leggette and Mr. Atherton, representing Ms. Henneberry. [9] On April 22, Mr. Leggette and Ms. Henneberry were given dates of July 21 – 24 for their Preliminary Inquiry. On July 21, theCrown indicated its intention to tender Mr. Leggette’s notes in evidence, through Cst. Hurley. Mr. Leggette objected, claiming that thenotes are protected by solicitor-client privilege. The Voir Dire [10] In order to determine if the notes are admissible at the Preliminary Inquiry, it was necessary to hold a voir dire.

As it wasanticipated that the notes would be the subject of testimony concerning their content, the potential that the notes could be found to beprivileged required that the voir dire to decide the issue be conducted in camera. The public and the media were excluded from thecourtroom during the voir dire. Media were present when I ordered that the voir dire was to be held in camera however no formal medianotice was given. I concluded that solicitor-client privilege, which must be “as close as possible to absolute”, does not involve “abalancing of interests on a case-by-case basis.” (R. v.

McClure, 2001 SCC 14 , [2001] S.C.J. No. 13, paragraph 25) I held thatthe media are not parties to this criminal proceeding – the parties are the Crown and Mr. Leggette and Ms. Henneberry – and that thedetermination of the issue of solicitor-client privilege in relation to Mr. Leggette’s notes does not involve any balancing of the media’sconstitutionally-protected rights. [11] It was acknowledged by Mr.

Leggette that the onus of proof at the voir dire rests with him: he asserted the privilege and thereforehe had to establish that his notes qualify as solicitor-client privileged communications. [12] The evidence at the voir dire consisted of Cst. Hurley explaining how he came into possession of Mr. Leggette’s notes and thecondition in which he received them. Mr. Leggette testified on his own behalf, for the limited purpose of addressing the privilege issue. [13] It was agreed that I would need to review Mr. Leggette’s notes as part of the process of determining the privilege issue. As noted inCanada v.

Solosky, (SCC), [1979] S.C.J. No. 130, at page 9 (Q.L. version): …privilege can only be claimed document by document, with each document being required to meet the criteria for the privilege – (

i) acommunication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to beconfidential by the parties. To make the decision as to whether privilege attaches, the letters must be read by the judge, which requires ata minimum, that the document be under the jurisdiction of a court. The Notes [14] Cst. Hurley described the condition of Mr. Leggette’s notes when they came into his possession.

The notes consist of 35handwritten pages on lined paper rolled into a scroll and inserted in two empty cardboard toilet paper rolls around which was wrapped athin piece of cardboard material similar to what is found at the back of a pad of paper. The outer cardboard had a graphic design on it.The toilet paper tubes were labeled with printing that says: “Darcy Kory Personal and Confidential” [15] The evidence established that Darcy Kory was Mr. Leggette’s cell mate. [16] Mr. Leggette confirmed that the rolled up notes were his writings.

He testified that he had secured them with a piece of paperwrapped around the toilet paper tubes and had printed on the paper “Legal Personal & Confidential”. The toilet paper tubes had beenstuck together with toothpaste to create a longer cylinder into which the rolled up notes were neatly fitted. It was Mr. Leggette’s evidencethat the thin piece of cardboard was not used as an outer layer but had been in his cell to block cold air coming in through a vent. [17] Mr.

Leggette testified that the paper with “Legal Personal & Confidential” on it had been torn at the time the notes were removedfrom his cell by correctional officers and was deposited on the desk in his cell. This torn piece of paper was entered by Mr. Sheppard asan Exhibit at the voir dire – VD 2. Mr. Leggette’s notes were entered as VD 1. [18] I will discuss the content of the notes later in these reasons. Solicitor-Client Privilege [19] Much has been written about the significance of solicitor-client privilege to the administration of justice.

Given the time constraintsfor writing this decision, I will not undertake a thorough review of the law on solicitor-client privilege. I will confine myself to makingsome succinct statements. [20] Solicitor-client privilege, a class privilege, “commands a unique status within the legal system.” (R. v. McClure, 2001 SCC 14, [2001] S.C.J. No. 13, paragraph 31) As noted by the Supreme Court of Canada in McClure, “The important relationshipbetween a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself.” And further: … The law is complex.

Lawyers have a unique role. Free and candid communication between the lawyer and client protects the legalrights of the citizen. It is essential for the lawyer to know all of the facts of the client's position. The existence of a fundamental right toprivilege between the two encourages disclosure within the confines of the relationship. The danger in eroding solicitor-client privilegeis the potential to stifle communication between the lawyer and client. The need to protect the privilege determines its immunity toattack. (McClure, paragraph 33)

[21] Solicitor-client privilege is a privilege that “must be as close to absolute as possible to ensure public confidence and retainrelevance. As such it will only yield in certain clearly defined circumstances…” and as I noted earlier in these reasons, “does not involvea balancing of interests on a case-by-case basis.” (McClure, paragraph 35) [22] Solicitor-client privilege in the criminal context has a particularly powerful resonance. This is illustrated in the followingcomments from Major, J. in Smith v. Jones, (SCC), [1999] S.C.J.

No. 15: 6 If the confidences clients share with counsel were not protected by privilege, it seems apparent that accused persons would hesitateto confide in their legal advisors, who in turn could not adequately represent them. The starting point of Canadian justice is that no one,no matter how horrible the alleged offence, be denied a full defence.

Nor will they be prejudiced by retaining counsel and freelydiscussing the case with him or her. 7 In the criminal context principles embodied in the rules of privilege have gained constitutional protection by virtue of theenshrinement of the right to full answer and defence, the right to counsel, the right against self-incrimination and the presumption ofinnocence in ss. 7, 10(b), 11(

c) and 11(

d) of the Canadian Charter of Rights and Freedoms; R. v. Hebert, (SCC), [1990]2 S.C.R. 151; R. v. Jones, (SCC), [1994] 2 S.C.R. 229, at pp. 246-55. 8 …Together, [these rights] demonstrate the reasons for denying any use of solicitor-client communications against an accused in anylegal proceeding. To deny the protection of solicitor-client privilege to the confidential communications of the accused to thoseintimately involved in the preparation of his defence would frustrate these rights.

For these reasons, the communications between anaccused and his counsel, made in furtherance of his or her defence, are accorded the highest level of protection and confidentiality. [23] Although Major, J. dissented in the result in Smith v. Jones, his statements about solicitor-client privilege are entirely consistentwith the jurisprudence of the Supreme Court of Canada on the issue. As the majority judgment in Smith v. Jones held: “[Solicitor-clientprivilege] is a principle of fundamental importance to the administration of justice.” (Smith v.

Jones, paragraph 50) In short, it is afundamental and substantive rule of law. (McClure, paragraph 17) The Constituent Elements of Solicitor-Client Privilege [24] Solicitor-client communications attract solicitor-client privilege if three elements are present: (1) the communication has to bebetween a lawyer and a client; (2) the communication must involve seeking or giving legal advice; and (3) the advice must have beenintended to be confidential. (Solosky, page 9 (Q.L. version) [25] The central issue in this case is whether Mr.

Leggette’s notes, or any parts of them, are characterized by these features of whatconstitutes solicitor-client communications. Analysis of the Notes [26] The voir dire evidence established that Mr. Leggette’s notes were never provided to any legal counsel. They were created by Mr.Leggette at the CNSCF and they remained in his cell until they were handed over by correctional officials to the police. [27] The 35 pages of notes were created between March 1 and April 6, 2014.

As they only have some internal numbering, the partiesagreed at the voir dire that the pages should be sequentially numbered to ensure the record is clear about what was being referenced intestimony. Cst. Hurley testified that he received the notes in the order they are currently in. Mr. Leggette testified that the pages were inthe order he made them, to the best of his recollection.

I am not sure this can be correct but it is inconsequential as many of the notes aredated. [28] The notes contain various headings such as “My Introduction” (pages 1 – 2 and pages 5 - 7); M Day (pages 3 – 4); My defense(pages 17 – 19); and People I would like to be mentioned in the book (page 35). Other pages are organized in the form of journal entries,and some pages are a mixture of autobiographical material and contemporaneous commentary. [29] Pages 8 through 16 of Mr. Leggette’s notes are dated in the nature of diary entries.

The first entry, entitled Entry 1, is written underthe heading Journal: It is dated March 7, 2014. Also on page 8 is Entry 2 dated March 8. Entry 3 dated March 9 is on page 9. Entry 4dated March 11 starts on page 9 and concludes on page 10. Also on page 10 is Entry 5 dated March 12. Entry 6 is on page 11 as is Entry7 dated March 14 and the start of Entry 8 dated March 18.

Entry 9 dated March 20 is on page 12, Entry 10 dated March 22 on page 13,Entry 11 dated March 28 on page 14, Entry 12 dated March 23 and Entry 13 on April 3 are on page 15, and the final entry, Entry 14,dated April 6 on page 16. [30] Page 34 is a lone page with the date Friday 28/14 on it. While it does not style itself as an “Entry”, its content is in the same vein asthe other entries in pages 8 – 16. Crown and Defence are agreed that the complete date for this note should be March 28, 2014. Communications Between a Client and His Lawyer [31] None of Mr. Leggette’s notes are addressed to a lawyer.

I find that means they are lacking one of the essentials for solicitor-clientprivilege - that the communications be between a client and his or her lawyer. Merely writing the word “legal” on paper that waswrapped around the notes, as Mr. Leggette did, does not make them solicitor-client communications. [32] It is apparent from the notes themselves that when some of them were created, Mr. Leggette had not settled the issue of legalrepresentation yet. I think it would be fair to say it was a work-in-progress until March 20 or so it appears. [33] Entry 1 dated March 7 indicates that Mr.

Leggette had had some contact with Lyle Howe, who at the time was a practicing lawyer.The March 7 entry notes that Mr. Leggette had an in-person conversation with Brian Bailey, an experienced criminal lawyer. On March13, Mr. Leggette recorded in Entry 6 that Lyle Howe visited him and they apparently had some discussion about Mr. Bailey’s overturesto Mr. Leggette. Mr. Leggette notes in Entry 6 dissatisfaction with his encounter with Mr. Bailey and writes: “But now Lyle is on the

case and we are on track to getting this case solved.” Mr. Leggette testified that at this point, he was in discussions with Lyle Howe but had not consummated their professional relationship. [ 34 ] In Entry 9 on March 20, Mr. Leggette indicates he went to court “yesterday, to simply sign papers, allowing and confirming for Lyle to be my lawyer.” He notes that arrangements were being made for “a second lawyer who is highly respectible (sic) and experienced in accessory after the fact, who Lyle believes is an asset to my case. His name is Terrence Sheppard.” [ 35 ] Notwithstanding that as of March 19, 2014 Mr.

Leggette appears to have entered into a solicitor-client relationship with Lyle Howe, none of Mr. Leggette’s notes are addressed to Mr. Howe, Mr. Sheppard, or more generically “legal counsel” or “my lawyer” or any other similar descriptor. [ 36 ] Mr. Sheppard has submitted that the fact Mr. Leggette did not address his notes to a lawyer should not be fatal to his claim of privilege. He noted that he often will ask clients to prepare summaries of information and written material about themselves to assist in the preparation of their cases. However I have no evidence that Mr.

Leggette was asked to do this by either of the lawyers I know he spoke with - Brian Bailey and Lyle Howe - and Mr. Leggette did not testify that he was advised by a lawyer to prepare these notes for that purpose. [ 37 ] Mr. Leggette did testify in direct examination that the purpose of his writings was to give Mr. Sheppard and Lyle Howe information about himself and “the case as I saw it.” However this claim is at odds with the fact that some of the notes are addressed to third parties, notably Darcy Kory, Mr.

Leggette’s cellmate, and in a portion of one page, Victoria Henneberry. [ 38 ] As I noted earlier, the toilet paper tubes containing the notes were inscribed “To Darcy Kory Personal and Confidential”. Mr. Leggette was asked on cross-examination to explain why the packaging for what he claimed are solicitor-client privileged notes was addressed to Mr. Kory. Mr. Leggette’s explanation was simply incoherent. He said it was in case the notes were seized to distinguish that they were his. This makes no sense.

What does make sense is not in evidence here and that is packaging that indicated they were the property of Mr. Leggette. When asked on cross-examination why he did not do that, Mr. Leggette said he didn’t really know why and added: “I’m really not sure how to answer that question.” It would seem his labelling of the notes makes as little sense to him as it does to me. [ 39 ] Mr. Leggette testified that his notes were not read by Mr. Kory and not meant to be read by him. However not only are there numerous references in the notes to what Mr. Leggette had been discussing with Mr. Kory, the

section of the notes entitled My defense at pages 17 through 19, dated March 11, 2014, is addressed Dear Darcy. The first line of these notes says: “I right (sic) this to you now, because I feel that people should know the truth about the happenings of February 13, the day Loretta Saunders passed away.” Mr. Leggette did not say he was writing these “defense” notes for his lawyer or that the purpose of writing them was to prepare his defence. According to this segment of the notes, the targeted audience were “people” that Mr.

Leggette said should know the truth about Loretta Saunders’ homicide. [ 40 ] In the portion of the notes where Mr. Leggette addresses himself to Ms. Henneberry he says the following: “I will always remember you Victoria Henneberry, and know I did love you, and there was a day I would have died for you, but you stabbed me in the back, spit on me and pushed a (sic) slapped me for the last time. You could have had it all, all you had to do was love me the way I loved you, and treated me the way a partner should have.” (pages 29 – 30) Purpose of the Notes [ 41 ] As I have noted, Mr.

Leggette testified that the purpose of his note-taking was to assist his lawyers with his case. However that is not how the notes read. Segments of the notes document daily events, other portions are Mr. Leggette ventilating his feelings about Ms. Henneberry and her having talked to the police - Entry 1, March 7, “…after everything I have done for her, she’s turned to being a rat, and looking out for just her, so I’m doing the same.” Mr.

Leggette writes about strategies he is employing to get other prisoners to leave him alone: “…I purposely stated that all the inmates should get off my back, since I’m not the one who killed Loretta Saunders. Victoria is the one, which is what we want people to believe, since I’ve said nothing and Victoria is speaking like a leaky faucet…” (Entry 2, March 8) He also describes advice he was getting from Mr.

Kory, including the following in Entry 10, March 22: “Basically I am growing impatient, I’m angry at myself for killing Loretta, and the fact I’m going to be blaming Victoria for it, so I don’t do life in prison, but Darcy says she deserves it.” Mr. Leggette goes on to ask himself if he can “actually trust Darcy” which “for the moment” he does. [ 42 ] As for the pages with Entries 1 through 14 and the stand-alone entry for March 28, Mr.

Leggette testified these were “like a journal entry, a diary for security reasons as well as to allow my legal counsel to know what was going on with me.” He acknowledged on cross- examination that he was documenting daily events when he made the entries; that these entries summarized what was going on at the time. [ 43 ] I have found nothing in the notes that supports Mr. Leggette’s claim of preparing them to assist his lawyers with his case. Furthermore, there is clear evidence in the notes that Mr. Leggette had been encouraged by Mr.

Kory to see the potential for writing a book about the case, capitalizing on its notoriety. The meaning in these “book” references is unequivocal. [ 44 ] On page 35 of the notes, Mr. Leggette lists the “People I would like to be mentioned in the book”. At the end of the list of five people, all prisoners at the CNSCF, Mr. Leggette includes Darcy Kory whom he describes as follows: “Has been my protection, and the person who has given me the inspiration and idea to right (sic) this book, with his jail experience and knowledge, his teachings are what has helped me to this point and onward.” [ 45 ] Mr.

Leggette recorded high hopes for his book, stating in Entry 5 on March 12 that: “I can’t wait to get the book deal on the go, and hopefully it will be as profitable as Darcy says.” As Mr. Leggette said about this passage on cross-examination: “It is what it states.” The note echoes what Mr. Leggette had written in Entry 1 on March 7: “…I’ll be out in a few years with at least one book, maybe two.” He described his aspiration to get some money out of the notoriety of the case, illustrating this point with multiple dollar signs: $$$ $$$$$$

[46] In his testimony, Mr. Leggette said he was not intending to get any money from his involvement with this case but his notes affordno other

interpretation: Mr. Leggette and Darcy Kory talked about spinning his story into gold. I find the notes were written with that inmind. [47] In Entry 10, dated March 22, Mr. Leggette is emphatic about his objectives: “I want to get this book deal thing on the go, if it iseven going too (sic) or am I writing all this down for nothing.” That notation could not be plainer: Mr. Leggette was not “writing all thisdown” for his lawyers notwithstanding what he says now. Intended to be Confidential [48] There are sufficient references in the notes that indicate Mr.

Leggette talked extensively with Darcy Kory and sought and followedhis advice that I am satisfied the contents of the notes were not of a confidential nature. While there is no evidence Mr. Kory read themand Mr. Leggette testified that he did not, the notes reveal that Mr. Kory knew a good deal about the issues and concerns that werepreoccupying Mr. Leggette. Mr. Leggette also seems to expressly contemplate that someone will be reading what he is writing. This isapparent when he says at page 24 in an autobiographical segment: “If anyone reading this knows Calgary…” I have also earlier notedMr.

Leggette’s reference to wanting “people” to know “the truth” about Ms. Saunders’ homicide (page 17) and how he and presumablyMr. Kory wanted “people” to believe that he was “not the one who killed Loretta Saunders.” (page 8) Segments of the notes in whichMr. Leggette talked about how he was not responsible for killing Ms. Saunders contained the content that Mr. Leggette wanted to bepublicly known. [49] Mr. Sheppard is correct when he describes some of Mr. Leggette’s notes as highly personal, particularly the passages about hismiserable childhood. But that does not establish that Mr.

Leggette intended the contents of his notes to be confidential communicationsfor his lawyers. The notes do not support this inference: what most of the notes suggest is that Mr. Leggette was creating content for thebook Darcy Kory was encouraging him to write. [50] As for the content of certain notes, such as the My defense notes, which Mr. Leggette may well have wanted to keep private, thatcontent was not prepared as a confidential communication to any lawyer. It is to be remembered that these notes were explicitlyaddressed to Darcy Kory. It is apparent Mr.

Leggette was thinking about his case, the My defense notes, the M day notes and otherwritings are evidence of this. But these notes read as strategic musings, for example where Mr. Leggette says at page 29: “Darcy says Iput the wrong one in the bag but I think she will hurt more knowing after everything she has done to me, I’ve done this to her.” Mr.Leggette is talking about Ms. Henneberry. Earlier in his writings, at page 8, Mr. Leggette notes that he is looking out for himself nowthat Ms.

Henneberry has talked to the police, “difference is” he says, “she will be going away for life.” As he wrote on March 22, Entry10, referring to Ms. Saunders’ homicide, he was “going to be blaming Victoria for it, so I don’t do life in prison…” [51] For the reasons I have just given, I am amply satisfied that none of the constituent features of solicitor-client protectedcommunications are present in Mr. Leggette’s notes such that they would enjoy the protection of solicitor-client privilege. Litigation Privilege [52] It was suggested by Mr.

Atherton that even if I did not find the notes to be cloaked by solicitor-client privilege, I should acceptthem as protected by litigation privilege. Having had the benefit of reading Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] S.C.J. No. 39, I understand that litigation privilege and solicitor-client privilege are conceptually distinct. (Blank,paragraph 31) The Supreme Court of Canada in Blank, cites R. J. Sharpe, “Claiming Privilege in the Discovery Process”, in Law inTransition: Evidence, [1984] Special Lect.

L.S.U.C. 163, at pp. 164-65 in which three important differences between litigation privilegeand solicitor-client privilege are identified:

(1) Litigation privilege applies to communications of a non-confidential nature between thesolicitor and third parties and even includes material of a non-confidential nature;

(2) Litigation privilege applies only in the context oflitigation itself; and

(3) Litigation privilege is geared directly to the process of litigation. As R. J. Sharpe states: …Its purpose is more particularly related to the needs of the adversarial trial process.

Litigation privilege is based on the need for aprotected area to facilitate investigation and preparation of a case for trial by the adversarial advocate, In other words, litigation privilegeaims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, theconfidential relationship between a lawyer and a client.) (Blank, paragraph 28) [53] I have found nothing in Mr. Leggette’s notes that suggests they could qualify for protection under the rubric of litigation privilege.Mr.

Leggette’s discussions with Darcy Kory, and any advice he sought or received from Mr. Kory as reflected in the notes do not qualifyfor the “zone” or “chamber” of privacy protected by litigation privilege. (Blank, paragraph 32) [54] As I find that none of Mr. Leggette’s notes are subject to protection as solicitor-client communications, it is unnecessary for me todiscuss the issue of exceptions to solicitor-client privilege such as criminal communications. [55] In conclusion, I find that all 35 pages of Mr.

Leggette’s notes are admissible in evidence against him at this Preliminary Inquiry onthe issue of committal.