R. v. Hodgson (C.D.), (2010) 254 Man.R.(2d) 278 (QB)

• Judge: Kaufman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 12, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 254 Man.R.(2d) 278 (QB);2010 MBQB 169

R. v. Hodgson (C.D.) (2010), 254 Man.R.(2d) 278 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. AU.004

Her Majesty The Queen (applicant) v. Christopher Derek Hodgson (accused/respondent)

(CR 09-01-29734; 2010 MBQB 169)

Indexed As: R. v. Hodgson (C.D.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Kaufman, J.

July 12, 2010.

Summary:

The Crown moved for an order of certiorari to quash the order of a preliminary inquiry judge to discharge the accused on a count of trafficking in cocaine. The Crown also sought an order of mandamus to direct the judge to commit the accused on the charge.

The Manitoba Court of Queen's Bench dismissed the motion.

Criminal Law - Topic 3535

Preliminary inquiry - Jurisdiction - Excess of jurisdiction - [See Criminal Law - Topic 3551 ].

Criminal Law - Topic 3551

Preliminary inquiry - Powers of judge - General - The Crown moved for an order of certiorari to quash the order of a preliminary inquiry judge to discharge the accused on a count of trafficking in cocaine and an order of mandamus to direct the judge to commit the accused on the charge - In order to obtain a conviction, the Crown had to prove that a bag containing cocaine which was seized from a Neon automobile, was brought to the Neon and left there by the accused - There was no direct evidence proving that assertion, but the Crown argued that the circumstantial evidence could lead to such a decision and whether or not it did so should be left for the jury - The Crown argued that the preliminary inquiry judge decided the appropriate inference to draw from the circumstantial evidence rejecting the inferences the Crown wished to draw - Further, the Crown argued that on his way to arriving at that impermissible conclusion, the judge committed another jurisdictional error in that he decided to reject part of the evidence of a witness (a police officer who said he saw the accused enter the Neon with the bag) as not believable - The Crown conceded that a preliminary inquiry judge was permitted a partial weighing of the evidence, but contended that the judge in this case exceeded that standard by assessing credibility - The Manitoba Court of Queen's Bench dismissed the motion - The judge was making a decision about the sufficiency of evidence, namely, whether the evidence was sufficient to go to a jury - He was not resting his decision on a finding of credibility in the sense of whether he believed or did not believe the witness's honesty - The judge was conducting a limited weighing of the evidence to ascertain whether it was sufficient - That was a function within his jurisdiction and certiorari could not issue.

Criminal Law - Topic 3588

Preliminary inquiry - Evidence - Credibility of witnesses - [See Criminal Law - Topic 3551 ].

Criminal Law - Topic 3613

Preliminary inquiry - Adjudication and review - Judicial review of discharge order - [See Criminal Law - Topic 3551 ].

Cases Noticed:

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 157 C.C.C.(3d) 1; 2001 SCC 53, refd to. [para. 3].

R. v. Innocente (D.J.) (2004), 221 N.S.R.(2d) 357; 697 A.P.R. 357; 2004 NSCA 18, refd to. [para. 3].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 3].

R. v. Faber (1987), 38 C.C.C.(3d) 49 (Que. S.C.), refd to. [para. 5].

Martinoff v. Canada et al., [1994] 2 F.C. 33; 165 N.R. 309 (F.C.A.), refd to. [para. 5].

Grinshpun v. R. (2004), 205 B.C.A.C. 110; 337 W.A.C. 110; 246 D.L.R.(4th) 428; 2004 BCCA 579, refd to. [para. 5].

R. v. Thomson (L.) (2005), 196 O.A.C. 39; 74 O.R.(3d) 721 (C.A.), refd to. [para. 6].

R. v. Redhead, 2010 MBQB 150, refd to. [para. 7].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 11].

R. v. Munoz (2006), 86 O.R.(3d) 134 (C.A.), refd to. [para. 17].

R. v. Slessor, 2007 ONCA 336, refd to. [para. 18].

Counsel:

Omar A. Siddiqui, for the applicant;

Jay C. Prober and Bradley T. King, for the accused/respondent.

This motion was heard before Kaufman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on July 12, 2010.