R v Hodgson: The SCC on the Crown’s Limited Right to Appeal an Acquittal

by Alain Zaramian · November 2, 2024

In R v Hodgson, 2024 SCC 25 [Hodgson], the Supreme Court of Canada (“SCC”) unanimously rejected the Crown’s appeal of an acquittal for second degree murder and manslaughter. The case turns on the scope of the Crown’s limited right to appeal acquittals under section 676(1)(a) of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. Hodgson is noteworthy for underscoring the policy rationales for this restricted appellate access, as well as reiterating the distinct duties assigned to trial judges as triers of fact and the limitations of appellate courts. The majority reasons were delivered by Martin and Moreau JJ, with brief concurring reasons given by Rowe J.

Facts

On May 18, 2017, Daniel Hodgson and Bradley Winsor, previously unknown to each other, attended a house party in Iqaluit at the home of Crystal Mullin. Winsor was accompanied by his friend Shawn Burke. At some point during the party, Hodgson was asked to help remove Winsor from the premises due to his severe intoxication and physically aggressive and inappropriate behaviour. This behaviour included following Mullin to her bedroom to engage in sexual relations.

In response to this conduct, Burke made repeated though unsuccessful attempts to persuade Winsor to leave Mullin’s home. The two eventually engaged in a physical altercation, in which Hodgson intervened “after he believed that he saw Mr. Winsor make a fist” (Hodgson, para 8). After being elbowed in the head by Winsor, Hodgson placed Winsor in a headlock. Despite protestations from the other guests to stop, Hodgson only released Winsor when Burke separated them, who intervened because he noticed that Winsor’s face had turned blue. Although Hodgson had applied the chokehold for only a short time, paramedics were unable to resuscitate Winsor and he died.

Judicial History

Nunavut Court of Justice

At trial, it was revealed that “a significant amount of pressure fractured Mr. Winsor’s hyoid bone, bruised the muscles in his neck, and caused internal hemorrhaging” (Hodgson, para 10). Medical experts agreed that neck compression was the main cause of death, but disagreed regarding the extent to which Winsor’s enlarged heart and his consumption of alcohol and cocaine were contributing factors (Hodgson, para 10). Although it was proven beyond a reasonable doubt that Hodgson caused Winsor’s death by applying a chokehold, he was ultimately acquitted for second degree murder since the Crown did not establish the crime’s subjective mental element (Hodgson, para 12).

Regarding the lesser offence of manslaughter, the trial judge determined that Hodgson’s defence under section 34 of the Criminal Code had an air of reality. She determined that Hodgson reasonably believed that Winsor was threatening others (s 34(1)(a)); that he used the chokehold in self-defence and in defence of others (s 34(1)(b)); and that the Crown did not establish that the chokehold “was not reasonable in all of the circumstances” (s 34(1)(c)) (Hodgson, para 13).

Nunavut Court of Appeal, 2022 NUCA 9

The Nunavut Court of Appeal allowed the appeal of Hodgson’s acquittal and ordered a new trial. It accepted the Crown’s claim that the trial judge did not engage with the proposition drawn from R v Lemmon, 2012 ABCA 103 [Lemmon] that “a chokehold is an inherently dangerous act” (Hodgson, para 15), leading her to err with respect to the mens rea element for murder. Regarding the findings on Hodgson’s manslaughter defence, it was determined that the trial judge erroneously applied a subjective standard in lieu of an objective one (Hodgson, para 16).

Issues

The SCC addressed the following three issues:

What is the scope of a “question of law alone” under section 676(1)(a) of the Criminal Code?
Did the trial judge err in law regarding the mens rea for second degree murder?
Did the trial judge err in law in relation to self-defence?

Decision

Crown Appeal of Acquittals and Questions of Law Alone

The SCC began by referring to section 676(1)(a) of the Criminal Code for the scope of a Crown appeal of an acquittal: “The [Crown] may appeal to the court of appeal (a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone.” With this in mind, the SCC emphasised that the Crown’s right to appeal an acquittal turns on the phrase “question of law alone” (Hodgson, para 19).

The Crown’s right to appeal an acquittal has occasioned much controversy for commentators on Canadian criminal law, though it was significant for the SCC that despite evolutions in its statutory history, its limitation to questions of law alone “has remained consistent” (Hodgson, para 23-24). The SCC advanced three principal rationales for maintaining unequal access to the appellate process as between the Crown and defendants: the avoidance of wrongful convictions (Hodgson, para 27), deference to a jury acquittal in cases of trial by jury (Hodgson, para 28), and, most importantly, the avoidance of double jeopardy, where an individual is prosecuted or punished twice for the same offence (Hodgson, para 29).

As the SCC highlighted with reference to R v Biniaris, 2000 SCC 15 [Biniaris], the Crown’s limited right to appeal on a “question of law alone” ought to be distinguished from the more fulsome appellate access available to the accused, who may appeal their verdict based “on questions of law, questions of fact, and questions of mixed fact and law” (Hodgson, para 32, quoting Biniaris, para 30). While some questions are indisputably questions of law, a clear taxonomy does not arise in every situation, especially when the purported error relates to the assessment of evidence (Hodgson, para 34). Martin and Moreau JJ thus turned to the Court’s guidance from R v JMH, 2011 SCC 45 [JMH], in which it had identified four “non-exhaustive” situations of this kind:

Making a finding of fact for which there is no evidence…;
The legal effect of findings of fact or of undisputed facts;
An assessment of the evidence based on a wrong legal principle;
A failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence (Hodgson, para 35).

For the SCC, it was crucial that the alleged error in the trial judge’s decision related to her assessment of the evidentiary record regarding the chokehold and her understanding of its seriousness and not her appreciation or application of the relevant legal standard (Hodgson, para 37). It was asserted, moreover, that the Court of Appeal neither identified an error in the trial judge’s decision vis-à-vis the mens rea for murder nor explained in what way the error was one of law alone under section 676(1)(a) (Hodgson, para 38). Indeed, the Court’s earlier jurisprudence indicates that, as with Hodgson, the determination of criminal intent is “often a difficult question of fact” (Hodgson, para 41, quoting Biniaris, para 51).

The Trial Judge Did Not Err Regarding the Mens Rea for Second Degree Murder

Martin and Moreau JJ, writing for the majority, found that the Court of Appeal’s reliance on the claim that a chokehold is inherently and invariably dangerous “inappropriately imported an objective element to the assessment of the mens rea for murder and read the Lemmon case too widely” (Hodgson, para 46). The SCC likewise rejected the use of R v Cooper, [1993] 1 SCR 146 for the same reason (Hodgson, paras 61-63). The difference between a subjective and objective standard for the mental element is the very difference between murder and manslaughter (Hodgson, para 48). In this way, the Court of Appeal relied on a legal error to grant the Crown’s appeal. Furthermore, as the Court concluded, a disagreement regarding the assessment of Hodgson’s use of the chokehold as “a regular ‘calm down’ method” (Hodgson, para 58) in the circumstances did not constitute an error of law; this assessment falls squarely within the competence of the trier of fact (Hodgson, para 52).

The Trial Judge Did Not Err in Law in Relation to Self-Defence

For Martin and Moreau JJ, the Court of Appeal also erred in its assessment of the trial judge’s findings regarding self-defence. Relying on phrasing drawn from R v Khill, 2021 SCC 37 [Khill], the Court of Appeal mistakenly characterised the trial judge as having conducted a purely subjective evaluation of the evidence relating to Hodgson’s self-defence argument (Hodgson, para 71). The Khill decision was not yet available to the trial judge nor did its absence result in any defect in her analysis (Hodgson, para 72). The trial judge fully appreciated the framework for and elements of self-defence.

Conversely, the SCC found that the Court of Appeal’s description of the alleged error was itself deficient for it did not explicitly show which of the three elements under section 34(1) was implicated (Hodgson, para 73). Nevertheless, Martin and Moreau JJ proceeded to infer that, based on its language and reasoning, the Court of Appeal likely contemplated section 34(1)(c) as the site of the trial judge’s alleged error (Hodgson, para 77). Section 34(1)(c) provides that a person is not guilty of an offence if “the act committed is reasonable in the circumstances.” Following that inference, the SCC systematically demonstrated how the trial judge committed no such error (Hodgson, paras 78-79). It concluded that she properly assessed Hodgson’s actions as reasonable and did not assign undue weight to his subjective mindset (Hodgson, para 81).

Concurring Reasons

In his concurring reasons, Rowe J briefly addressed an exception to the Crown’s limited appellate access. Referring to JMH, he recalled that a trial court’s application of a wrong legal principle to the evidence can give rise to a Crown appeal of an acquittal (Hodgson, para 85). A trial judge’s incorporation of a “myth” in its reasoning meets this threshold. The category of “myth,” moreover, is not a fixed category, but is liable to expansion (Hodgson, para 86).

Analysis

When the state intervenes to administer justice, it is appropriately fettered by both procedural constraints and the limitations that flow from the allocation of discrete powers to its various arms. Procedural constraints include impaired appellate access for the Crown. This impairment acknowledges the individual as the quintessential minority, whose resources and legal rights are otherwise dwarfed by those of the state. Thus at para 30 the SCC approvingly quotes Rand J in Cullen v The King, [1949] SCR 658 at 668:

At the foundation of criminal law lies the cardinal principle that no [individual] shall be placed in jeopardy twice for the same matter… It is the supreme invasion of the rights of an individual to subject [that individual] by the physical power of the community to a test which may mean the loss of [their] liberty or [their] life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.

Trial judges as triers of fact have unique duties within the judiciary. The rationale for the near-exclusive assignment of these duties to courts of first instance is perhaps better understood primarily in terms of finality and judicial economy than of the checking of state power. Nevertheless, Hodgson demonstrates that maintaining these discrete powers can protect the interests of the accused against those of the state. Encroachment within the judiciary and the inflation of the Crown’s rights are the dominant themes of this case, as when the SCC asserted that “the Court of Appeal effectively reweighed the evidence in a manner not available to an appellate court” (Hodgson, para 46). Martin and Moreau JJ went to great lengths to articulate the policy rationales for the Crown’s limited right of appeal, which are overwhelmingly concerned with the interests of the accused. What is clear in Hodgson is that the Crown’s limited right to appeal and appellate deference to triers of fact are in some instances complementary checks on the state’s exercise of power. As such, the latter principle ought to be guarded no less jealously than the former.