1991 S.H. No. 80452 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Application for an Order in the nature of Habeas Corpus and for an Order in the nature of Certiorari in aid thereof pursuant to the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, C. 253 and Rule 58 of the Civil Procedure Rules; BETWEEN: SUSAN ADSHADE Applicant and HER MAJESTY THE QUEEN, in the Right of the Province of Nova Scotia, and His Honour Judge Donald J. MacDonald Respondent HEARD BEFORE: The Honourable Mr. Justice Gordon A. Tidman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 17, 1992 DECISION DATE: January 23, 1992 (Orally) COUNSEL: Duncan R. Beveridge for the Applicant William F. Kaulback, Q.C. for the Respondent 1991 S.H. No. 80452 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Application for an Order in the nature of Habeas Corpus and for an Order in the nature of Certiorari in aid thereof pursuant to the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, C. 253 and Rule 58 of the Civil Procedure Rules; BETWEEN: SUSAN ADSHADE Applicant and HER MAJESTY THE QUEEN, in the Right of the Province of Nova Scotia, and His Honour Judge Donald J. MacDonald Respondents TIDMAN, J. (Orally) This is an application for an Order in the nature of Habeas Corpus and an Order in the nature of Certiorari in aid thereof. The applicant was remanded into custody upon her committal for trial on charge of first degree murder following preliminary inquiry into the charge. The applicant, through her counsel, contends that the Provincial Court judge erred in committing the applicant for trial and that her detention is, therefore, unlawful. At the conclusion of the hearing of evidence at the preliminary inquiry the Provincial Court judge, in committing the applicant for trial, stated: "I find here that there is evidence adduced by the Crown as far as the killing of Mr. Adshade was done by Mark Dickie. I'm satisfied that Mrs. Adshade was there at the time. There's evidence adduced by the Crown that the matter had been discussed by Mrs. Adshade and Mark Dickie prior to the event. There's evidence by the Crown that Mark Dickie was paid money by Mrs. Adshade, or given money, after the event and there's fair amount of circumstantial evidence as to the cleaning up of the apartment after the event. This evidence would have to be assessed and dealt with by trier of fact. It is my opinion that based on all of the evidence before me that the evidence adduced by the Crown here, yesterday and today, that properly instructed jury may find Mrs. Adshade guilty of the offence charged, and I'm satisfied that there is sufficient evidence to commit her for trial on the charge before the Court, namely that on the 29th day of April, 1991, at or near Truro in the County of Colchester, that she did commit first degree murder on the person of Leon Adshade, contrary to Section 235(1) of the Criminal Code, and therefore pursuant to Section 548 of the Criminal Code, hereby commit Mrs. Adshade for trial ..." Mr. Beveridge submits that there was no evidence before the learned judge upon which to properly base his conclusion. As preliminary argument Mr. Beveridge contends that the scope of review of the committing judge's decision by this court is broader in this type of application, i.e. Habeas Corpus with Certiorari in aid, than in an application for Certiorari relief alone. He contends the scope is broadened by the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, c.253 and the uncodified common law relating to habeas corpus relief. He concedes, however, that the test to be applied in this application, which may, in his view, be broader than the test applied in an application for "certiorari" alone, is the test applied by MacDonald, J.A. in R. v. Lapierre (1976), 15 N.S.R. (2d) 361 (A.D.) where he states: "The day has long gone when mere scintilla of evidence will justify committal for trial; thus on an application for criminal habeas corpus with certiorari in aid agree, as stated earlier, with Evans, J.A. in the Botting case, that the reviewing court should examine the evidence taken on the preliminary inquiry to determine its sufficiency to deprive the Applicant of his liberty. The evidence should be found sufficient if the reviewing court can say that on such evidence jury, properly instructed and acting judicially could convict; any doubt on this question must be resolved in favour of the Crown. In so examining the evidence the superior court is not really substituting discretion for that of magistrate but rather is determining whether the magistrate applied proper principles in ordering committal for trial." For the purposes of this application it is not necessary to decide whether there is such distinction in the tests to be applied as suggested by Mr. Beveridge. In my view, the issue before the court may be resolved by using what Mr. Beveridge suggests may be the broader test as expressed by MacDonald, J.A. Mr. Beveridge submits that the test the committing judge indicated he applied, i.e. that upon the evidence adduced before him "a properly instructed jury may find Mrs. Adshade guilty of the offence charged", is not the proper test as verbalized by MacDonald, J.A. in R. v. Lapierre. He argues that in applying the wrong test the learned judge misdirected himself and thus wrongfully committed the applicant. In reviewing a decision of the committing judge, with respect to Mr. Beveridge, the question is not whether the judge correctly verbalized the test to be used but rather whether the evidence before the judge supported the conclusion to commit for trial. review of the transcript of the evidence adduced before the learned judge at the preliminary enquiry shows evidence of the following circumstances: (1) Mark Dickie murdered Leon Adshade; (2) At the time, the accused and Mr. Dickie were friends or acquaintances; (3) couple of days before the murder, Mr. Dickie brought and left baseball bat at the accused's apartment; (4) Mr. Dickie brought knife to the accused's apartment; (5) couple of days before Mr. Dickie killed Leon Adshade at the accused's apartment by hitting him on the skull with the baseball bat and stabbing him with the knife at the accused's apartment, he discussed with the accused the idea about hitting Leon Adshade with the baseball bat; (6) That the deceased was the estranged husband of the applicant; (7) Mr. Dickie killed Leon Adshade and placed his body in the accused's bedroom closet when only they were present in the accused's apartment; (8) That Mr. Dickie left the accused's apartment and later that evening or early the following morning returned to the accused's apartment, removed the body and cleaned up the apartment with rag and mop; (9) That the accused went to party that evening returning home at 5:00 a.m. on the following day; (10) That while at the party Mr. Dickie called to speak to the accused and she temporarily left the party; (11) That the day following the murder the accused, in the presence of Mr. Dickie, cleaned the kitchen floor with javex, scrubbed the bench upon which Leon Adshade was seated in the kitchen when he was struck with the baseball bat and stabbed with the knife; (12) The bench was later found to be stained with blood which could have come from the deceased; (13) The day following the murder Mr. Dickie obtained from Block cheque made payable to the accused. On the same day Mr. Dickie endorsed the cheque in the deceased's name and gave it to the accused at credit union where the accused cashed it and gave portion to Mr. Dickie who says she had not previously borrowed money from him; (14) That death could have been caused by either the blow to the head or the stabbing. Section 231(2) of the Criminal Code provides that murder is first degree when it is planned and deliberate. Section 231(3) provides: "Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death." Section 21(1) provides: 21(1) Every one is party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it." Mr. Beveridge submits that: (1) there is no evidence of planning on the part of the applicant either through money arrangement or otherwise, as there must be in order to commit for trial; and (2) there is no evidence that the applicant actually committed the offence charged or aided or abetted Mr. Dickie in committing the offence charged, again as there must be in order to commit for trial. In dealing with the first submission, agree with Mr. Beveridge to the extent that there is no direct evidence of planning on the part of the applicant. finding of planning on the part of the applicant must, therefore, be supported by circumstantial evidence. There is, in my view, evidence of circumstances which could support conclusion of planning, such as previous discussion between Mr. Dickie and the applicant of Mr. Dickie hitting the deceased with baseball bat prior to the killing, bringing and leaving the baseball bat at the applicant's apartment, forcefully striking the deceased over the head with the baseball bat and stabbing the deceased all in the presence of the applicant and the payment of unowed money to Mr. Dickie by the applicant on the following day. Dealing with Mr. Beveridge's second submission, again agree that if, on the evidence, the applicant was simply passive spectator to the crime, there would be no basis for the committal. However, there is again, in my view, evidence which would support conclusion that the applicant aided or abetted Mr. Dickie in committing the offence charged. There is evidence that the applicant, two days before the killing, knew of Mr. Dickie's intention to strike the deceased with the baseball bat, that the baseball bat was brought to her apartment and remained there until used by Mr. Dickie in striking the deceased and that the applicant's estranged husband was killed in her apartment. It may be successfully argued that such evidence is not particularly weighty in support of the learned judge's conclusion. However, the question of weight, as Judge MacDonald apparently concluded, must be left for the jury. In my view, there was evidence before the learned judge upon which a jury, properly instructed and acting reasonably in accordance with those instructions, could convict the accused of first degree murder. Consequently, I would dismiss the application. J. Halifax, Nova Scotia February 5, 1992 1991 S.H. No. 80542 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Application for an Order in the nature of Habeas Corpus and for an Order in the nature of Certiorariin aid thereof pursuant to the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, C. 253 and Rule 58 of the Civil Procedure Rules; BETWEEN: SUSAN ADSHADE, Applicant and HER MAJESTY THE QUEEN, in the Right of the Province of Nova Scotia, and His Honour Judge Donald J. MacDonald Respondents
This was an application for an Order in the nature of Habeas Corpus and Certiorari in aid. The applicant had been charged with the first degree murder of her estranged husband. The judge at preliminary inquiry concluded that there was evidence adduced that the accused had paid money to the man who had killed the victim the day after the killing, that she was involved in cleaning the apartment where the killing took place after the body was removed, and that the accused and the man who killed the victim had discussed the matter prior to the event, and thus there was sufficient evidence upon which a 'properly instructed jury may find...[the accused] guilty...' The appellant contended that the judge had applied the wrong test for committal. Dismissing the application, that the question is not whether the judge correctly verbalized the test, but rather if the evidence supported the committal, and there was, indeed, enough circumstantial evidence upon which a jury, properly instructed and acting reasonably in accordance with those instructions, could convict the accused of first degree murder.