R. v. Leggette (B.), 2015 NSSC 112

Judge:Arnold, J.
Court:Supreme Court of Nova Scotia
Case Date:February 25, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSSC 112;(2015), 358 N.S.R.(2d) 328 (SC)
 
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R. v. Leggette (B.) (2015), 358 N.S.R.(2d) 328 (SC);

    1131 A.P.R. 328

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Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.047

Her Majesty the Queen v. Blake William David Leggette and Victoria Lea Henneberry

(CRH No. 430128; 2015 NSSC 112)

Indexed As: R. v. Leggette (B.) et al.

Nova Scotia Supreme Court

Arnold, J.

April 15, 2015.

Summary:

The accused was charged with murder. He was remanded into custody. During a general search for a broken mop handle that could have been converted into a weapon, guards discovered 35 or more pages of writing in the accused's cell. Part of the writings appeared to be a complete confession to the murder. Another part described a plan to entirely blame a co-accused for the murder. Asserting that the writings had been seized improperly, contrary to s. 8 of the Charter, the accused sought their exclusion from the evidence at trial under s. 24(2) of the Charter. Alternatively, the accused asserted that the writings were protected by solicitor and client privilege and, as such, were inadmissible.

The Nova Scotia Supreme Court dismissed the Charter application. The writings were not privileged and were properly admitted into evidence at trial.

Editor's Note: For a related decision, see (2014), 348 N.S.R.(2d) 350; 1100 A.P.R. 350.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused was charged with murder - He was remanded into custody - During a general search for a broken mop handle that could have been converted into a weapon, guards discovered 35 or more pages of writing in the accused's cell - Part of the writings appeared to be a complete confession to the murder - Another part described a plan to entirely blame a co-accused for the murder - Asserting that the writings had been seized improperly, contrary to s. 8 of the Charter, the accused sought their exclusion from the evidence at trial under s. 24(2) of the Charter - The Nova Scotia Supreme Court dismissed the application - The general search of the cell was authorized under s. 61 of the Correctional Services Act - Section 62 authorized a more focussed search where an official conducting a search suspected that the property was related to the commission of an offence or contravention of a rule - Once one of the officers noticed the word "shank" in the writings, the search properly advanced to a more focussed s. 62 search - The officer was authorized to review the writings in detail - Objectively, there was no reasonable expectation of privacy - The search was completely reasonable - There was no violation of s. 8 - Further, there was no violation of s. 7 (right to silence) or s. 11(d) (presumption of innocence) of the Charter - Section 24(2) did not apply - See paragraphs 114 to 132.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1653.1

Property - Search and seizure - Warrantless search and seizure - Inmates' cells, etc. - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 4302

Protection against self-incrimination - Right to remain silent - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 4909

Presumption of innocence - General principles - Circumstances not infringing presumption - [See Civil Rights - Topic 1508 ].

Criminal Law - Topic 136

Rights of accused - Right to silence - [See Civil Rights - Topic 1508 ].

Evidence - Topic 4238

Witnesses - Privilege - Lawyer-client communications - Documents prepared in contemplation of litigation - The accused was charged with murder - He was remanded into custody - During a general search for a broken mop handle that could have been converted into a weapon, guards discovered 35 or more pages of writing in the accused's cell - Part of the writings appeared to be a complete confession to the murder - Another part described a plan to entirely blame a co-accused for the murder - The accused asserted that the writings were protected by solicitor and client privilege and, as such, were inadmissible - The Nova Scotia Supreme Court admitted the writings into evidence - The court rejected the accused's assertions that the writings were intended for a present or future lawyer - Part of the writings was a rough draft of notes that the accused provided to his cell mate for the book that the cell mate was writing - Another part was also likely the accused's own rough notes for a book that he might have intended to write - The writings were not produced to obtain legal advice or to aid in the conduct of litigation - The writings were not privileged - See paragraphs 88 to 113.

Prisons - Topic 1109

Administration - Prisoners' rights - Searches - General - [See Civil Rights - Topic 1508 ].

Prisons - Topic 1115

Administration - Prisoners' rights - Privacy - [See Civil Rights - Topic 1508 ].

Cases Noticed:

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 91].

R. v. Morris (J.E.) (1992), 117 N.S.R.(2d) 60; 324 A.P.R. 60 (Co. Ct.), refd to. [para. 98].

R. v. Dunbar (J.) and Logan (K.) (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 100].

Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1995), 184 N.R. 139 (F.C.A.), refd to. [para. 101].

Samson Indian Band v. Canada - see Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

R. v. Bonnell (C.) (2012), 410 N.B.R.(2d) 210; 1065 A.P.R. 210 (T.D.), refd to. [para. 102].

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 117].

Weatherall v. Canada (Attorney General) - see Conway v. Canada.

R. v. Lamirande (S.C.) et al. (2002), 163 Man.R.(2d) 163; 269 W.A.C. 163; 2002 MBCA 41, refd to. [para. 119].

R. v. Sutherland (J.D.) (1997), 120 Man.R.(2d) 125 (Q.B.), refd to. [para. 121].

R. v. Major (J.) (2004), 188 O.A.C. 159 (C.A.), refd to. [para. 126].

Statutes Noticed:

Correctional Services Act, S.N.S. 2005, c. 37, sect. 61, sect. 62 [para. 11].

Authors and Works Noticed:

Cory, Peter, The Inquiry Regarding Thomas Sophonow, pp. 63 [para. 62]; 69 [para. 63].

Halsbury's Laws of Canada, HAP-218 [para. 118].

Wigmore on Evidence (MacNaughton Rev. 1961), vol. 8, paras. 2285 [para. 90]; 2292 [para. 89].

Counsel:

Christine Driscoll and Sean McCarroll, for the Crown;

Terrence G. Sheppard, for the defendant, Blake William David Leggette;

J. Patrick Atherton and David Dalrymple, for the defendant, Victoria Lea Henneberry.

This application was heard at Halifax, N.S., on January 19 and 20 and February 25, 2015, by Arnold, J., of the Nova Scotia Supreme Court, who delivered the following written decision on April 15, 2015.

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