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Nick Whitfield and Joseph Neuberger, Neuberger & Partners LLP
In R v Hodgson 2024 SCC 25, the Supreme Court of Canada reaffirmed the Crown’s limited right of appeal from an acquittal, while providing valuable guidance on the mens rea for murder, the assessment of chokeholds, and the legal test for self defence.
The case arose from an altercation at a house party where Mr. Hodgson helped remove a belligerent guest. A fight ensued and Mr. Hodgson used a chokehold to restrain the guest, who subsequently lost consciousness and died.
The trial judge found the chokehold to be the cause of death beyond a reasonable doubt. But she acquitted Mr. Hodgson of second-degree murder – a murder that is neither planned nor deliberate – because the Crown had failed to establish the subjective mens rea of the offence. The trial judge also acquitted Mr. Hodgson of manslaughter, finding an air of reality to his claim of self-defence under section 34 of the Criminal Code. The Crown, she ruled, had failed to establish that the chokehold was not reasonable in all the circumstances.
The Nunavut Court of Appeal allowed the Crown’s appeal of the acquittal and ordered a new trial, finding at least two errors of law in the trial judgement. The first error concerned the mens rea for murder: that the trial judge had failed to consider a chokehold to be an inherently dangerous act. The second error concerned the application of self-defence to manslaughter: that the trial judge had taken an improperly subjective approach to Mr. Hodgson’s perceived threat.
Mr. Hodgson appealed the decision. The Supreme Court allowed the appeal and restored his acquittal.
The Crown’s Right of Appeal from an Acquittal is Limited to Questions of Law:
The Supreme Court began by reiterating the Crown’s narrow right of appeal from an acquittal, which is limited to questions of law alone. A “question of law” refers typically to a purely legal conclusion drawn from an accepted set of facts, such as the definition of the elements of a criminal offence.
The Supreme Court confirmed that an appeal from an acquittal is an exceptional remedy, and even where the Crown can identify an error of law, “acquittals are not overturned lightly.” The rationale for this strict rule is to avoid wrongful convictions and to safeguard against double jeopardy. It is incumbent upon appeal courts to “articulate with precision” any supposed error of law.
The Mens Rea for Murder is Exclusively Subjective, and the Dangerousness of Chokeholds is Determined Case by Case:
The appeal court in Hodgson suggested the trial judge had erred in law by overlooking the inherent dangerousness of chokeholds. But the Supreme Court rejected that analysis on grounds that it infused an objective element into the mens rea for murder. Unlike the mens rea for manslaughter, which requires the objective foreseeability of the risk of bodily harm, the mens rea for murder is exclusively subjective: the intent to kill or the reckless intent to cause bodily harm that the perpetrator knows will likely lead to death.
A conviction for murder requires exclusively subjective intent because of the severity of the attendant stigma and punishment. The appeal court drifted from this strict standard by characterizing all chokeholds as inherently dangerous and thereby saddling the mens rea for murder with an objective requirement. Instead of focusing solely on what the perpetrator subjectively intended, the appeal court’s approach would ask what the perpetrator ought to have known about the inherent dangerousness of chokeholds.
The Supreme Court found against that approach and identified no errors of law at trial, noting that a court “cannot pre-emptively establish a single way of characterizing chokeholds. There is thus no ‘legal rule’ … as to the general dangerousness of chokeholds. Rather, each case must be assessed on its own facts.”
The Analysis of Self-Defence Incorporates Subjective and Objective Elements:
The Supreme Court also addressed the analysis of self-defence claims under section 34 of the Criminal Code, confirming both subjective and objective components.
For self defence, (1) the accused must subjectively believe that force was being used or threatened against them or another person, and (2) that belief must be objectively reasonable in all the circumstances. The trial judge applied this standard correctly to Mr. Hodgson, referencing the factors outlined in the Criminal Code, and the Supreme Court upheld her finding that the Crown had not proven the chokehold to be unreasonable in all the circumstances.
Conclusion:
The Supreme Court’s decision in Hodgson reasserts the Crown’s narrow scope of appeal from an acquittal, confirms the strict subjective mens rea for murder, and urges a fact-specific approach to the evaluation of chokehold cases. Hodgson also clarifies the relevance of subjective beliefs and objective reasonableness to the analysis of self-defence.
