On review from a committal to stand trial on a charge of second degree murder by a preliminary inquiry judge dated September 13, 2017. Date: 20180302 Docket: CR 17-01-36388 (Winnipeg Centre) Indexed as: R. v. Linklater Cited as: 2018 MBQB 38 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: COUNSEL: HER MAJESTY THE QUEEN, ) ) For the Crown: Respondent, ) Michael Himmelman ) - and - ) ) For the (Accused) Applicant: BILLY JOE LINKLATER, ) Martin Glazer and James Lowry ) (Accused) Applicant. ) Judgment delivered: ) March 2, 2018 MARTIN J. INTRODUCTION [1] Mr. Billy Joe Linklater, along with Ms. Lorie Knott, is accused of stabbing to death David Sanderson in his home on June 22, 2016. After a preliminary inquiry, they were jointly committed to stand trial for second-degree murder. Mr. Linklater seeks an order of certiorari quashing his committal; Ms. Knott does not.
Page: 2 ISSUE [2] On application for certiorari, Mr. Linklater claims that the preliminary inquiry judge exceeded his jurisdiction in committing him to trial where there was no evidence to support such a decision. [3] The Supreme Court of Canada affirmed the standard of review on such an application in R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804: [19] The scope of review on certiorari is very limited. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction [20] the reasons for limiting the scope of supervisory remedies is clear Critically, the preliminary inquiry is not meant to determine the accused s guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused. The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry. And referring to Estey J. in Skogman v. The Queen, [1984] 2 S.C.R. 93, the Court noted: [21] No evidence on an essential element of the charge, he held, cannot amount to sufficient evidence, and s. 548 of the Criminal Code authorizes the committal of an accused to trial only if there is sufficient evidence : Thus, [w]here the record does not include evidence relating to each essential element of the charge brought against the accused, a committal of the accused to stand trial can be brought forward by way of a writ of certiorari to a superior court and can be quashed. [case references removed; underlining in original]
Page: 3 [4] In sum, Mr. Linklater is not entitled to a de novo review of the evidence and I am not to substitute my opinion of the evidence for that of the preliminary inquiry judge. [5] Thus, the issue in this case is: did the preliminary inquiry judge exceed his jurisdiction, in committing Mr. Linklater to stand trial for second degree murder by making such order arbitrarily or where there was no evidence upon which a reasonable jury properly instructed could return a verdict of guilty? THE PARTIES POSITIONS [6] Counsel agree that the case against Mr. Linklater is comprised only of circumstantial evidence. From a no evidence standpoint, the critical argument is that on the evidence presented at the preliminary inquiry Mr. Linklater was not identified as a perpetrator in Mr. Sanderson s killing; this would have to be an inference drawn from the evidence accepted by the jury. [7] Defence counsel argues this lack of identification on two bases: (i) that Mr. Linklater was not, and could not be, identified at all in any of the evidence presented at the preliminary inquiry; and, more so, (ii) that the evidence fails to place him at the scene of the killing or participating in the killing. [8] Crown counsel disagrees, saying Mr. Linklater is clearly seen in video evidence and a reasonable inference that can be drawn from the whole of the evidence is that Mr. Linklater must have been at the scene of the crime and must have participated. While there may be competing inferences, they say it is for
Page: 4 the jury to decide whether this view is the only reasonable inference from all of the evidence of guilt. FACTS [9] There is no direct evidence of who killed Mr. Sanderson or exactly when. There is direct evidence that Mr. Sanderson was stabbed 33 times in his home; that he died of significant blood loss, and; that a fire occurred in Mr. Sanderson s home around the same time. Indeed, he was discovered dead because of the fire. The fire department was dispatched at about 3:34 a.m. They were called shortly before, by Mr. Sanderson s neighbour. [10] The critical circumstantial evidence in issue surrounds Mr. Sanderson s death, notably before-and-after video captured at various times from numerous business s security cameras. All of the seized video was reduced to a 22 minute video collage, comprised of multiple pieces of video. The quality of some video was much better than other parts, but for purposes of the preliminary inquiry, or the issue before me, this is not of much moment because the quality of much of it was sufficient for identification purposes. [11] As to the video before his death, Mr. Sanderson is seen leaving the Northern Hotel at about 1:24 a.m., with two people, a male and female. Various snippets of video seem to show the three of them headed in the general direction of Mr. Sanderson s home. There is then a gap in the video of about two hours. The video after that time shows the male and female walking away
Page: 5 from the general area of Mr. Sanderson s home and generally toward Mr. Linklater s mother s home. To be clear, the video does not show anyone immediately nearby Mr. Sanderson s home, either before or after his death. [12] As a matter of convenience, and to put all the evidence in context, I pause to deal with defence counsel s first argument: that Mr. Linklater was not, and could not be, identified from any evidence at the preliminary inquiry. I disagree. Even if he did not expressly say so, clearly the preliminary inquiry judge reasonably found that the male in the before-and-after video was or could be Mr. Linklater. There is a striking resemblance and physical similarity between the male and Mr. Linklater; similar clothing as that worn by the male in the video was found in Mr. Linklater s mother s house, and; an officer testified that he arrested Mr. Linklater, with Ms. Knott, a few days later based on his comparison of them to the video and a photo from the video. [13] Moving on, there is also other evidence that is relevant to Mr. Linklater: first, Ms. Knott is materially linked to Mr. Sanderson s death. She made a police statement admitting to being at Mr. Sanderson s home during the relevant time. Also, in the after-death video, she is not wearing shoes and a pair of running shoes was found in Mr. Sanderson s home with his blood on them. They are similar in appearance to the shoes worn by her at the Northern Hotel around 1:24 a.m. Further, Mr. Sanderson s DNA was found on some articles she had that night; second, Mr. Linklater is materially linked to Ms. Knott that night:
Page: 6 o they are seen together in the before-and-after video; o clothing resembling clothing worn by Mr. Linklater and Ms. Knott in the video was found in Mr. Linklater s mother s home. Specifically, a Chicago Bulls baseball cap, a green and black checked plaid jacket, and a black hooded sweatshirt that had Mr. Sanderson s blood on it that appears consistent to clothes Ms. Knott is seen wearing in the before-and-after video; o on arrest a few days later, Ms. Knott was in possession of a black backpack that had Mr. Sanderson s DNA on it. A similar backpack can be seen in the video being carried alternately by Mr. Linklater and Ms. Knott; and o in the before-and-after videos, Ms. Knott and Mr. Linklater exhibit close familiarity with each other in terms of how they interact and are touching, and they alternately wear the ball cap and carry the backpack. [14] Finally, in the video Ms. Knott has difficulty walking and standing, particularly in the before-death video. I described this as wobbling. Mr. Linklater seems to be physically supporting her at times. ANALYSIS [15] R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, was also a situation where there was a review of an order for committal on second degree murder. The accused was charged with first degree murder, but the preliminary inquiry
Page: 7 judge did not find any evidence of planning and deliberation. The legal issue before the Supreme Court of Canada involved the treatment of exculpatory evidence. Nevertheless, the court restated: [21] The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty Under this test, a preliminary inquiry judge must commit the accused to trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction. Further, the court noted that the test was the same whether the evidence is direct or circumstantial: [29] However, where the Crown s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. [30] In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge s task is to determine whether, if the Crown s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. [underlining in original] [16] Here, the preliminary inquiry judge was alive to the proper test for committal as outlined above. He referred to the seminal case of United States of America v. Shephard, [1977] 2 S.C.R. 1067, and also, in respect of parties, R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881, which stands for the
Page: 8 proposition that mere presence at the scene of a crime does not amount to criminal culpability for the crime itself. Having said this, one must be cautious because the fact scenario of a specific case may reasonably allow a trier of fact to conclude that an accused is more than merely present and as such a party culpable for the crime. Finally, the judge was aware that this is a circumstantial case. [17] While brief, the judge laid out his assessment of some of the evidence before him that may be taken into account by a trier fact in drawing inferences in this circumstantial case. He said at page 5: There s a connection to the accused. There s a proximity to the scene. There s timing I would argue before and after but that s an issue to be dealt with. Relationship between the individuals. The characteristics of the individuals when you re talking about lack of shoes, backpack, other kinds of things, and other exhibits that have been filed. And these aren t dealt with individually. They re dealt with cumulatively. That s what circumstantial evidence is about, the law that we learned as law students. Is there a black thread among the white threads in putting those matters to get cumulative effect of those possible circumstances? And as I say, different conclusions can be drawn but I only have to determine whether they couldn t be drawn from, reasonably drawn from the circumstances that s before the court. And I m of the view that with respect to the test in Shepherd that that has been met with respect to the murder As a matter of completeness, I note that he discharged Mr. Linklater on other counts. [18] I return to defence counsel s second argument. Stated somewhat differently, the crux of this circumstantial case is whether a reasonable inference could be drawn from the whole of the evidence that Mr. Linklater was present and participated in the killing of Mr. Sanderson. Clearly, from the excerpt noted
Page: 9 above, the preliminary inquiry judge thought that such an inference could be drawn. [19] The before-and-after video connects Mr. Linklater and Ms. Knott, and other evidence connects her to the homicide. On this view of the evidence, a properly instructed jury could reasonably conclude that Mr. Linklater was with Mr. Sanderson and Ms. Knott before his killing and was with Ms. Knott shortly after. But what about during the time of the killing? After all, there is a twohour gap in the video. Here, defence counsel argues that such a conclusion would be speculation and as such a trial judge would be compelled to take the case away from the jury and direct an acquittal. [20] The Crown s submission is that Mr. Linklater was with Ms. Knott throughout the time shown on the before-and-after video; that Ms. Knott was present at Mr. Sanderson s killing, and; that Ms. Knott, because of her small stature and apparent drunkenness as seen in the video, could not have inflicted 33 knife wounds to Mr. Sanderson by herself. They also point to the short timeframe (about two hours), the interactions between Mr. Linklater and Mr. Knott as seen on the before-and-after video and finding the ball cap and clothes (particularly the black sweatshirt with Mr. Sanderson s blood on it) at Mr. Linklater s mother s home. [21] Considering all of the evidence and links between Ms. Knott and the killing, and between Mr. Linklater and Ms. Knott, I defer to the preliminary inquiry judge s assessment -- which is that a properly instructed jury could
Page: 10 reasonably conclude that Mr. Linklater was present and participated when Mr. Sanderson was killed. As the judge noted, there could be alternate inferences, but that is for the jury to decide. Effectively, he concluded that the Crown s argument respecting the circumstantial evidence sufficiently hit the mark of reasonable inferences, for the test on committal, that it should be left to the jury to decide, despite defence counsel s argument as to alternate interpretations, inferences and conclusions that could otherwise be drawn. [22] I do not agree that this result is a demonstration of circular logic or that this case is simply about Mr. Linklater being in the general vicinity at the time of the homicide. With respect, it seems that the trap the defence counsel has fallen into is one that we instruct juries to avoid. That is, we instruct them to look at the evidence cumulatively and not in isolation or piece by piece. [23] At the end of the day, considering all of the evidence, circumstantial and direct, and reasonable inferences that could be drawn from that, along with the principles set out in Russell, Shephard, Arcuri, R. v. Eckstein, 2012 MBCA 96, 288 Man.R. (2d) 26 and also R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, to which I was not referred, I am satisfied that the preliminary inquiry judge did not exceed his jurisdiction in committing Mr. Linklater to trial for murder and that I have no grounds to interfere with that decision. The test for committal is a low bar and the test for review on a certiorari application a high one. On the evidence before me, I would not take this case away from a jury on a directed verdict application.
Page: 11 [24] There are many things that the jury will have to assess in terms of the weight to be given to the evidence or absence of evidence, and the drawing of reasonable inferences, including those inconsistent with guilt, regarding the core issues in this case. But that is their function as the trier of facts. No doubt they will be properly instructed respecting drawing of reasonable inferences, avoiding speculation, not filling in gaps in the evidence and the test for conviction in a circumstantial case, all as recently reviewed in Villaroman. I make no comment on the strength or weakness of the case or of a likely outcome. CONCLUSION [25] I find that the preliminary inquiry judge did not exceed his jurisdiction by ordering Mr. Linklater to stand trial for second-degree murder, as there is evidence upon which a reasonable jury, properly instructed, could find that Mr. Linklater was a principal or party in Mr. Sanderson s homicide. The application for certiorari is dismissed. J.