R v Linklater, 2018 MBCA 83

Citation: R v Linklater, 2018 MBCA 83 Date: 20180828 Docket: AR18-30-09022 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) M. D. Glazer ) for the Appellant Respondent ) ) R. D.

Lagimodière - and - ) for the Respondent ) Billy joe linklater ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) August 28, 2018 On appeal from 2018 MBQB 38 chartier CJM (for the Court): [ 1 ] The accused appeals the decision of the reviewing judge dismissing his request for an order of certiorari to quash his committal to stand trial for second degree murder following a preliminary inquiry.

That decision is owed a high level of deference (see R v Eckstein (SM) , 2012 MBCA 96 at paras 9-13 ). [ 2 ] There is no right of appeal from a section 548(1) Criminal Code committal decision (se e R v Sazant , 2004 SCC 77 at para 46 ). The only way to review the committal decision is by judicial review on a motion for certiorari to the Court of Queen’s Bench and that is a limited review. A reviewing judge can only intervene if the preliminary inquiry judge commits a jurisdictional error. Errors of law are not reviewable by way of certiorari .

As this Court recently stated in R v CMM , 2017 MBCA 105 (at para 10 ): A jurisdictional error will arise from an evidentiary ruling at a preliminary inquiry in only two discrete situations: where the presiding judge fails to observe a mandatory provision of the Criminal Code or denies a party natural justice. [ 3 ] It is well established that preliminary inquiry judges would be committing jurisdictional error if they were to commit an accused to stand trial when there is no evidence on an essential element of the offence (see R v Russell , 2001 SCC 53 at para 48 ; and R v Deschamplain , 2004 SCC 76 at para 23 ).

It is also well established that, as long as there is some evidence on each essential element of the offence, a preliminary inquiry judge’s assessment of the sufficiency of the evidence is not subject to review on certiorari (see Deschamplain at para 37 ). [ 4 ] At the hearing before the reviewing judge, the accused alleged that the preliminary inquiry judge committed a jurisdictional error when he ordered the accused to stand trial.

The accused’s main argument was that there was no evidence on an essential element of the offence: that the person accused of the murder was the perpetrator (or one of the perpetrators). The preliminary inquiry judge found that there was some evidence linking the accused to the murder. [ 5 ] The accused has not been able to persuade us that the reviewing judge erred in concluding that the preliminary inquiry judge did not commit jurisdictional error in committing the accused to stand trial for second degree murder. [ 6 ] The reviewing judge correctly stated and applied the relevant legal principles.

He correctly noted that a preliminary

inquiry judge’s assessment of the evidence is entitled to the greatest deference (see Russell at para 48 ). He reviewed at some length the evidentiary record before the preliminary inquiry judge and concluded that the preliminary inquiry judge did not exceed his jurisdiction in committing the accused.

Moreover, the reviewing judge correctly refused to turn his review for jurisdictional error into a review as to the sufficiency of the evidence, which is a question of law, not jurisdiction. [ 7 ] While it would appear that the reviewing judge may have erred in two respects, namely in relying on an officer’s testimony to establish the identification of the accused when that evidence was admitted for the limited purpose of establishing the officer’s reasonable grounds for arrest, and secondly, on his improper use of the co-accused’s statement, we remain of the view that these mistakes are inconsequential because they were not made by the preliminary inquiry judge. [ 8 ] Notwithstanding these errors, we are all of the view that the reviewing judge correctly concluded that it was open to the preliminary inquiry judge to find that the inferences put forward by the Crown were reasonable and provided some evidence to support the committal for second degree murder. [ 9 ] For these reasons, the appeal is dismissed.

CJM JA JA