This week’s top three summaries: R v Hodgson, 2024 SCC 25: #error of law, R v DB, 2024 ONCA 546: accused #reaction, and R v Belval, 2024 ABCA 215: s276 con’t #gatekeeper.
R v Hodgson, 2024 SCC 25
[July 12, 2024] Appeals: Definition of an Error of Law, Intent for Murder: Inherent Dangerousness of Choking [Reasons by Martin and Moreau JJ. with Wagner C.J. and Karakatsanis, Côté, Kasirer, Jamal and O’Bonsawin JJ. concurring, Separate concurring Reasons by Rowe J.]
AUTHOR’S NOTE: Under s.676(1)(a), the Crown’s right to appeal is limited to questions of law alone. If an error pertains only to a finding of fact or an inextricable question of mixed fact and law, the Crown cannot appeal a verdict. Therefore, it is crucial for appellate counsel to correctly identify errors of law and counter attempts by Crown counsel to frame factual issues as questions of law. The language in this case may provide defense appellate counsel with the tools needed to challenge such arguments effectively.
This case also explores the relationship between the specific intent for murder and the inherent dangerousness of the act of strangulation. While judges can consider the dangerousness of strangulation to infer murderous intent, there is no legal principle requiring them to do so. Mandating such consideration would turn a factual assessment into a legal obligation, effectively allowing the Crown to appeal a factual finding. The Supreme Court rejects this approach, emphasizing that the inference of intent must remain a factual determination rather than a legal requirement. Moreover, murder requires specific intent to kill which requires courts to remain vigilant against turning the assessment of intent into a suggestion of what the accused or a reasonable person in their shoes should have known.
I. Introduction
[1] The appellant, Daniel Hodgson, was acquitted of second degree murder following a trial by judge alone. He attended a house party, and was asked to assist with removing Bradley Winsor, another guest, who refused to leave despite repeated requests to do so. A physical altercation ensued during which Mr. Hodgson used a chokehold to restrain Mr. Winsor, who lost consciousness. Tragically, and despite resuscitation attempts, Mr. Winsor died. The trial judge found that Mr. Hodgson lacked the mens rea for murder and that because he used the chokehold as a means of selfdefence to protect himself and others attending the party, he had a defence to the lesser included offence of manslaughter.
[2] The Crown appealed, arguing that this was one of the exceptional cases in which the trial judge had committed an error of law that would allow an appellate court to review and reverse an acquittal….
[4] First, we explain the foundations of the Crown’s limited right of appeal on questions of law alone when it seeks to overturn an acquittal. Second, we address whether the trial judge was required as a matter of law to accept that a chokehold is an inherently dangerous action when assessing the mens rea for murder. We conclude that while this inference is available in some cases, it is not an error of law for a trial judge to reach a different conclusion about a particular accused’s mens rea based on the evidence. Third, we explain why there is no legal error in the trial judge’s approach to self-defence. While she did not have the benefit of this Court’s reasoning in R. v. Khill, 2021 SCC 37, her analysis aligns with its principles. She correctly understood what was required under each of the statutory elements in s. 34 of the Criminal Code, R.S.C. 1985, c. C-46. We are therefore of the view that the trial judge made no errors of law in her reasons.
[5]….Mr. Winsor became increasingly intoxicated throughout the night and had, at some point, also consumed cocaine. At various points throughout the night, Mr. Winsor had behaved inappropriately towards Crystal Mullin. For example, when Crystal Mullin had been heading towards her bedroom, Mr. Winsor was aggressive and tried to get into her room because he wanted to be physically intimate with her.
[6] As a result of Mr. Winsor’s intoxication, Mr. Burke began to repeatedly ask Mr. Winsor to turn over his truck keys so that Mr. Winsor would not drive while intoxicated. Mr. Burke also repeatedly asked Mr. Winsor to leave Crystal Mullin’s home. Mr. Winsor refused to do either. Eventually, a physical altercation broke out between Mr. Burke and Mr. Winsor during which Mr. Winsor pushed Mr. Burke against a wall.
[7] During this period, Mr. Hodgson was sleeping in a nearby spare bedroom. Ms. Ford-Perkins woke Mr. Hodgson to ask for his help in dealing with the situation between Mr. Burke and Mr. Winsor….
….Mr. Hodgson and Mr. Winsor had not had any prior relationship, interaction or communication before that night but had spoken to each other during the house party. There were no indications of any “bad blood” between them.
[8]….. Mr. Hodgson unsuccessfully tried to pull Mr. Winsor to the ground by pulling on his shoulders from behind. Mr. Winsor responded by elbowing Mr. Hodgson in the head. Mr. Hodgson then put Mr. Winsor in a chokehold. As Mr. Winsor and Mr. Hodgson struggled, the two fell to the floor.
[9] At this point, Crystal Mullin, Ms. Sikkinerk and Samantha Mullin had entered the living room, where the altercation was taking place. They, along with Mr. Burke, shouted at Mr. Hodgson to “stop”. Mr. Burke noticed that Mr. Winsor’s face was turning blue and that Mr. Hodgson was not listening to their calls for him to stop. Mr. Burke then pulled Mr. Hodgson and Mr. Winsor apart. The chokehold incident was over quite quickly, and the eyewitnesses were all surprised that Mr. Winsor did not recover. Samantha Mullin called an ambulance. Ms. Sikkinerk and Mr. Burke performed CPR on Mr. Winsor, but he died from his injuries.
A. Nunavut Court of Justice (Charlesworth J.)
[13] The trial judge determined that all requirements for manslaughter, including the mental element, were present as Mr. Hodgson caused Mr. Winsor’s death by the unlawful act of intentionally applying force to Mr. Winsor without his consent. The trial judge next considered Mr. Hodgson’s claim to have acted in self-defence and defence of others under s. 34 of the Criminal Code. She concluded that the defence had an air of reality and then went on to consider each of the elements of s. 34 of the Criminal Code. She found, with respect to s. 34(1)(a), that Mr. Hodgson believed on reasonable grounds that Mr. Winsor was making a threat of force against the others. In relation to s. 34(1)(b), Mr. Hodgson used the chokehold for the purpose of defending or protecting himself and the others from the threat posed by Mr. Winsor. As to s. 34(1)(c), the trial judge considered each of the factors set out in s. 34(2), related each factor to the facts as she found them, and concluded that the Crown had failed to establish that the chokehold was not reasonable in all of the circumstances….
B. Nunavut Court of Appeal, 2022 NUCA 9 (Schutz, Campbell and Pentelechuk JJ.A.)
[15] The court was of the view that the trial judge erred in failing to address the Crown’s argument based on R. v. Lemmon, 2012 ABCA 103, 65 Alta. L.R. (5th) 177, that a chokehold is an inherently dangerous act. The critical portion of the Court of Appeal’s reasons in respect of the perceived errors concerning the mens rea for murder is set out in para. 5 (CanLII):
….the trial judge did not assess this evidence with respect to what [Mr. Hodgson] believed or intended considering the dangerousness of squeezing Mr Winsor’s neck to the point of unconsciousness, or the possible recklessness of his actions….
[16] With respect to self-defence, the Nunavut Court of Appeal concluded that the trial judge erred in law by failing to assess Mr. Hodgson’s actions in relation to what a reasonable person would have done in the circumstances. Instead of doing so, the trial judge assessed Mr. Hodgson’s response through a purely subjective lens.
[24]…. The Crown’s ability to appeal an acquittal has been viewed as an “innovation in the procedure of criminal law” that was a “striking departure from fundamental principles of security for the individual”….
….Commentators have referred to it as “drastic”, “exceptional”, “special”, “unusual” and “limited” in an “extrem[e]” or “narrow” manner….
(2) Rationales for the Crown’s Limited Right of Appeal
[29] The most important justification behind the limited nature of the Crown’s right of appeal, however, lies in the principle against double jeopardy. In the United States, it is for this reason that the Supreme Court has concluded that an appeal against an acquittal would violate the Fifth Amendment (see, e.g., McElrath v. Georgia, 601 U.S. 87 (2024), at p. 94). The protection against double jeopardy is also part of the framework that governs the Crown’s ability to obtain a retrial after an acquittal in the United Kingdom (Criminal Justice Act 2003, s. 76(4)(c)).
[30] This rationale is also crucial in Canadian law. Our Court has held that the Crown’s ability to appeal an acquittal does not violate s. 11(h) of the Canadian Charter of Rights and Freedoms (R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 155-56, per McIntyre J., dissenting, but not on this point). Nevertheless, as Kasirer J.A. noted in LSJPA – 151, the Crown’s [TRANSLATION] “limited right of appeal seeks to prevent an appeal on the facts to protect acquitted persons from the double jeopardy associated with a new trial” (para. 57 (footnote omitted))….
(3) Defining the Scope of the Crown’s Limited Right of Appeal
[32] The history and rationale of s. 676(1)(a) is important for understanding the purpose and scope of the Crown’s limited right of appeal and helps answer “the vexed question of what constitutes, for jurisdictional purposes, an error of law alone” (see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24). In Biniaris, this Court held that a “question of law alone” is “used in contrast to the right of the accused to appeal both on questions of law, questions of fact, and questions of mixed fact and law” (para. 30). The Court declined the invitation to distinguish between a “question of law alone” and a “question of law”, holding that there is “nothing different” between them and that both terms must receive the same interpretation (para. 31).
[33]….A legal question generally flows from an accepted or uncontested factual situation; the appellate court can then reach a purely legal conclusion drawn from the evidence without calling into question the trial judge’s evaluation of the evidence (M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2023 (30th ed. 2023), at para. 51.55). Clear examples of legal questions which do not depend on the facts of a given case include, for instance, statutory interpretation, the scope of a constitutional right, and the definition of the essential elements of an offence (para. 51.58).
[34] In other situations, drawing the line between questions of law and questions of fact or of mixed fact and law can become more challenging. This is often the case when the alleged error concerns a trial judge’s assessment of the evidence. As this Court explained in R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, “[a]n appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof” (para. 10 (citations omitted)). There are, however, situations in which a “trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal” (J.M.H., at para. 24).
[35] In J.M.H., the Court identified four non-exhaustive such situations:
1. Making a finding of fact for which there is no evidence — however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule;
2. The legal effect of findings of fact or of undisputed facts;
3. An assessment of the evidence based on a wrong legal principle;
4. A failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence
[36] Even if the Crown is able to point to an error of law, acquittals are not overturned lightly (see R. v. Cowan, 2021 SCC 45, at para. 46). The Crown must also convince the appellate court, to a reasonable degree of certainty, that the verdict of acquittal would not necessarily have been the same had the error not occurred (Graveline, at para. 15; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2)….
(4) Failure to Articulate an Error of Law for the mens rea for Murder
[37]….Rather, the court alleged that the error of law was based on how the trial judge assessed the evidence regarding the characterization of a chokehold and the weight assigned to its gravity. Specifically, she failed to apply Lemmon and “did not assess this evidence with respect to what [Mr. Hodgson] believed or intended considering the dangerousness of squeezing Mr Winsor’s neck to the point of unconsciousness, or the possible recklessness of his actions” (para. 5).
[38]….However, the Court of Appeal did not state precisely what error of law it thought was committed in relation to the mens rea for murder. The absence of a clearly articulated error of law makes it difficult to conduct effective appellate review (see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869).
[39]….Courts especially must remain vigilant because “[i]t is not usually difficult for an experienced Crown counsel to frame an appeal in language suggesting that a question of law is there involved” when in fact it is not (R. v. Odeon Morton Theatres Ltd., [1974] 3 W.W.R. 304 (Man. C.A.), at pp. 304-5; see also R. v. Chatwin Motors Ltd., [1980] 2 S.C.R. 64, at p. 76, quoting this passage with approval). [Emphasis by PJM]
[41] Beyond invoking two decisions — Lemmon and R. v. Cooper, [1993] 1 S.C.R. 146 — the Court of Appeal did not explain why the error it claims to have identified with respect to the intent for murder is one of law. On this point, it is worth noting that “[t]he determination of the intent or foresight of a person at the time of his participation in a homicide is often a difficult question of fact” (Biniaris, at para. 51 (emphasis added); see also, on intent as a question of fact, Schuldt v. The Queen, [1985] 2 S.C.R. 592, at pp. 599-600, and R. v. B. (G.), [1990] 2 S.C.R. 57, at pp. 68-69). We agree with Mr. Hodgson that, in this case, the determination of criminal intent was a quintessential factual conclusion based on an assessment of the evidence by the trier of fact. As stated in George, at para. 24: “. . . no legal error arises from mere disagreements over factual inferences or the weight of evidence .”
[42] The Crown identified the error of law as the trial judge’s failure to consider the inherent dangerousness of the chokehold used by Mr. Hodgson. The Crown claims the legal errors committed fall within the second, third and fourth categories from J.M.H., in that the trial judge erred in relation to the legal effect of findings of fact, assessed evidence based on a wrong legal principle or failed to consider all of the evidence in relation to guilt or innocence.
[43] We disagree; the alleged error is not one of law. As this Court explained in Chung, the second and third errors identified in J.M.H. “address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law” (Chung, at para. 11 (emphasis added)). It is this “erroneous understanding” or “misapprehension” of the law that an appellate court must precisely identify and articulate when overturning an acquittal….
….With respect, the Court of Appeal did not articulate the precise error of law at the root of its intervention. This is not a case in which the appellate court can reach a purely legal conclusion drawn from the evidence without calling into question the trial judge’s evaluation of the evidence.
[44] Furthermore, even if we proceed on the basis that the alleged errors are ones of law, as we explain in the next section, the trial judge did not commit any such errors.
B. Did the Trial Judge Err in Law Regarding the mens rea for Second Degree Murder?
[46] We instead conclude that the trial judge made no error of law concerning the mens rea for murder. The Court of Appeal’s approach on this point inappropriately imported an objective element to the assessment of the mens rea for murder and read the Lemmon case too widely. Nor was the trial judge required to mention the proposed common sense inference that Mr. Hodgson intended to kill Mr. Winsor because the natural and probable consequence of choking someone forcefully to the point of unconsciousness is death. This argument erroneously discredits the trial judge’s specific findings as to Mr. Hodgson’s mens rea based on a generally available inference. In the result, the Court of Appeal effectively reweighed the evidence in a manner not available to an appellate court.
[48] In contrast, “a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight” (R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 654 (emphasis added); R. v. Martineau, [1990] 2 S.C.R. 633, at p. 646). Murder is distinguished from manslaughter “only by the mental element with respect to the death” (Vaillancourt, at p. 654, quoted in Creighton, at p. 17, per Lamer C.J., concurring). The requisite intent for murder is “an intent to kill or an intent to cause bodily harm that the offender knows is likely to cause death and is reckless as to whether or not death ensues” (R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 3).
[49] A conviction for murder requires subjective intent because it is an offence that “carries with it the most severe stigma and punishment of any crime in our society” (Martineau, at p. 645)….
[50] Given this rationale, any slippage from the high bar of subjective intent required for murder must be avoided. The accused’s actions are not to be measured against the objective standard of a reasonable person in the same circumstances. The mens rea for murder requires more than an intention to cause bodily harm that the accused knew was dangerous; an accused must have intended to cause bodily harm that they knew was likely to cause death. Thus, the proposition that a chokehold is always an inherently dangerous act runs the risk of inappropriately injecting an objective element into the mens rea analysis for murder. This is because the subjective foresight required for murder is focused solely on what the accused intended, and the analysis cannot consider what the accused ought to have known about the inherent dangerousness of a chokehold. [Emphasis by PJM]
[51]…. Accordingly, for an accused to be convicted of murder, it is not sufficient for the Crown to prove that a particular accused knew that a chokehold in the circumstances was dangerous or that a reasonable person in the accused’s position would have known that the chokehold would cause bodily harm that was likely to cause death…. [Emphasis by PJM]
[52] Consequently, accepting the proposition that a chokehold is always an inherently dangerous act in every case would inappropriately import an objective element into the analysis of the mens rea of murder. Accepting this proposition would also usurp the role of the trier of fact, who must assess the dangerousness of a chokehold based on the facts of the particular case.
[53] In light of the fact that the trial judge in this case found that Mr. Hodgson would have been guilty of manslaughter if not for the act having been committed in self-defence, or in defence of others, it is clear that she properly considered that a chokehold can be dangerous. Indeed, the evidence demonstrates that, as a method of restraint, chokeholds can certainly carry with them a degree of danger. As Dr. Milroy explained, strangulation prevents breathing and deprives the brain of blood and, thereby, of oxygen. Thus, unlike a headlock — which merely immobilizes someone by limiting their movement — a neck compression chokehold can rapidly lead to unconsciousness. The tragic consequences that Mr. Winsor suffered, including serious injuries in addition to a loss of consciousness and death, speak to how dangerous chokeholds can be.
[54] However, in respect of the subjective mens rea for murder, the trial judge accepted the testimony of Mr. Hodgson as to his state of mind when he used the chokehold on Mr. Winsor. Mr. Hodgson testified that the chokehold was meant to “restrain [Mr. Winsor] and try and throw him to the ground” and that he maintained the chokehold until Mr. Winsor “stopped struggling” because he was afraid of Mr. Winsor (transcript, reproduced in A.R., part V, at pp. 423-24). The trial judge accepted that, at the time, Mr. Hodgson did not think the chokehold was inherently dangerous and that he also did not have time, in the midst of the altercation, to think about its dangerousness. His personal experience included viewing videos in the media of law enforcement using chokeholds to induce unconsciousness; he witnessed such a technique used effectively when he was a bouncer in 1998 and had used it himself in 2016. Although the person he had used it on in 2016 was rendered unconscious, that person did not die and instead “got up and started fighting immediately after” (p. 446). While Mr. Hodgson acknowledged seeing news stories of people dying as a result of being placed in chokeholds by police, he testified that he could not “say for sure” whether he knew that chokeholds were dangerous at the time of the party (p. 462). [Emphasis by PJM]
[55] The trial judge also considered other available evidence that could realistically bear on Mr. Hodgson’s intent, including the circumstances in which Mr. Hodgson became involved in the altercation, the short duration of the chokehold, the evidence of the other guests who were surprised that Mr. Winsor did not recover quickly after being put in the chokehold, and the experts’ opinions on how long it might take for a chokehold to lead to unconsciousness and death….
[57] The trial judge reviewed all this evidence in detail and ultimately concluded that she had a reasonable doubt as to whether Mr. Hodgson intended to kill Mr. Winsor or knew that the chokehold was likely to do so. She found there “was no evidence that satisfie[d] [her] beyond a reasonable doubt that Mr. Hodgson intended to cause death or knew that what he did would have that result” (para. 97 (emphasis added)). Her conclusion that there was no intent to murder was firmly grounded in the evidence pertaining to Mr. Hodgson’s subjective state of mind.
[58] With respect, the Court of Appeal seems to have simply disagreed with the trial judge’s assessment that the chokehold used in these circumstances was intended to be a regular “calm down” method. Such a disagreement as to the characterization of a chokehold in these particular circumstances is not an error of law that justifies overturning an acquittal.
(2) No Error of Law in Respect of Lemmon and Cooper
[59]….The Court of Appeal in the present case quoted Lemmon for the proposition that
[r]endering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences. . . . The difference in the outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure.
(C.A. reasons, at para. 6, quoting Lemmon, at para. 28.)
[60] Respectfully, Lemmon is being read too widely if taken to establish a general legal proposition that a chokehold is always an inherently dangerous act….
….That there is an inherently dangerous quality to such actions, however, does not mean that trial judges must in every case conclude that every chokehold or action that affects a person’s airways is always an inherently dangerous act.
[62] In Cooper, the accused was mad at the victim, grabbed her by the throat with both hands and choked her for up to two minutes until she died. Based on this specific evidence, it was open to the trier of fact to “infer [that] the accused knew that strangulation was likely to result in death” because “breathing is essential to life” (p. 159). However, the Court also specifically stressed that “the jury was, of course, not required to make such an inference” (p. 159 (emphasis added)). Accordingly, Cooper should not be read as a blanket legal statement as to the dangerousness of all forms of chokeholds in every scenario.
(3) Did the Trial Judge Err in Law in Failing to Consider the Common Sense Inference?
[65] The Crown next argues that the trial judge erred in law by failing to consider the common sense inference, namely that sane and sober individuals intend the natural and probable consequences of their actions, in light of all the relevant evidence (Walle, at paras. 58-63). The common sense inference the Crown proposes is that choking someone forcefully to the point of unconsciousness amounts to an intentional infliction of bodily harm where the natural consequence is death.
[67] While the common sense inference can serve as a helpful “marker against which to measure the rather amorphous concept of intent”, it does not replace a trial judge’s evaluation of subjective intent (Walle, at para. 63). It is a permissive inference, not a presumptive one (R. v. Seymour, [1996] 2 S.C.R. 252, at para. 20; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 104; Walle, at para. 63). Thus, it cannot be an error for a trial judge to not seize it. A trier of fact must carefully consider the evidence that points away from the common sense inference before acting on it, as this Court aptly put in Walle:
If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the [trier of fact] in a state of reasonable doubt about the accused’s intent, then the [trier of fact] may properly resort to the common sense inference in deciding whether intent has been proved. [para. 67]
[68] In this case, the trial judge chose not to infer Mr. Hodgson’s mental state and based on the evidence she did accept, she had a reasonable doubt as to whether Mr. Hodgson intended to cause death or bodily harm that he knew was likely to result in death. The trial judge had the benefit of Mr. Hodgson’s testimony that he did not think the chokehold was dangerous and that he did not intend to kill or harm Mr. Winsor (trial reasons, at para. 88). Having accepted his testimony, this put an end to her mens rea analysis, and there was no need for her to consider the common sense inference….
[69] In sum, we see no error, and certainly no error of law, in the trial judge’s assessment of the evidence on the mens rea for manslaughter or murder.
C. Did the Trial Judge Err in Law in Relation to Self-Defence?
[71] The Court of Appeal concluded that the trial judge erred in law because she “improperly took a solely subjective approach to assessing [Mr. Hodgson’s] response to the perceived threat posed by Mr. Winsor” (para. 8)….
[73] In some respects, it is difficult to understand what precise legal error motivated the Court of Appeal to order a new trial on this ground. While the critique that a solely subjective approach was taken is clear, it is less clear to which element of the s. 34 analysis this criticism attaches. The Court of Appeal’s holding that the trial judge did not assess Mr. Hodgson’s actions in “considering what a reasonable person would have done in like circumstances” suggests that it was of the view the trial judge erred in her analysis of s. 34(1)(c) (para. 7); however, the phrase the Court of Appeal chose to describe the perceived error — “[Mr. Hodgson’s] response to the perceived threat” (para. 8) — can encompass one, some, or all of the statutory elements of s. 34. The Court of Appeal’s failure to clearly identify which element(s) of the self-defence inquiry under s. 34(1)(a) to (c) was engaged is problematic as each has its own considerations and methods of evaluation.
[74] First, under s. 34(1)(a), the accused must have subjectively believed that force or a threat thereof was being used against their person or against that of another (Khill, at para. 52). However, the accused’s belief must also be held on reasonable grounds. In order to assess the reasonableness of the accused’s belief, the trier of fact will apply a modified objective standard that takes into account what a reasonable person with the relevant characteristics and experiences of the accused would perceive (Khill, at para. 57). That the accused’s actual belief must be held “on reasonable grounds” imports an objective component to ensure conformity with community norms and values when weighing the moral blameworthiness of the accused’s actions (Khill, at para. 53). The trial judge applied this modified objective standard and held, based on the evidence she accepted from Crystal Mullin, Mr. Hodgson, Mr. Burke and Ms. FordPerkins, that “Mr. Hodgson believed on reasonable grounds that there was a threat of force being made by Mr. Winsor against the others. When Mr. Hodgson went to deal with that threat, as requested by Ms. Ford-Perkins, force was applied against him by Mr. Winsor” (para. 107). On this element, the trial judge specifically turned her mind to the reasonable grounds component of s. 34(1)(a) and did not adopt a solely subjective analysis.
[75] Second, under s. 34(1)(b), whether the accused committed the act that constitutes the offence for the purpose of defending or protecting themselves or others from the use or threat of force depends upon the accused’s subjective state of mind; if the purpose is not to defend or protect, then the whole basis of self-defence falls away. Indeed, for this second element, a failure to consider the accused’s personal purpose, a subjective inquiry which goes to the root of self-defence, would have been an error of law (Khill, at para. 59). The trial judge expressly found that there was no other reason Mr. Hodgson used the chokehold but to calm Mr. Winsor down and “thereby protect himself and the others at the party from the threat being posed by Mr. Winsor” (para. 111). No error has been demonstrated in respect of the trial judge’s treatment of this element.
[76] Third, s. 34(1)(c) requires that “the act committed is reasonable in the circumstances”, and s. 34(2) provides a list of nine non-exhaustive factors for the court to consider in making this determination. Parliament expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. What is called for is an assessment of the overall reasonableness of the accused’s conduct according to the statutory factors. Reasonableness is measured according to “the relevant circumstances of the person, the other parties and the act” (Criminal Code, s. 34(2); see also Khill, at para. 64). When a factor is relevant it becomes a mandatory consideration, as s. 34(2) provides that the fact finder “shall” consider all factors set out in paras. (a) to (h) that are relevant in the circumstances of the case (Khill, at para. 68). This objective determination, with its focus on what a reasonable person would have done in comparable circumstances, strikes the appropriate balance between respecting the security of the person who acts and the security of the person acted upon. It also underscores that the law of self-defence “cannot rest exclusively on the accused’s perception of the need to act” (Khill, at para. 2; see also paras. 62 and 65).
[78] The trial judge discharged the obligation s. 34(2) places on the finder of fact to consider a wide range of factors in order to determine what a reasonable person would have done in a comparable situation. She separately addressed all factors that the parties argued were relevant, applicable, and worthy of consideration. Under every factor, the trial judge considered and evaluated the material evidence….
[79] The trial judge then addressed the key question of whether, after assessing all the relevant factors, Mr. Hodgson’s act was reasonable in the circumstances. This assessment of the s. 34(2) factors reveals no error of law. The trial judge’s references to Mr. Hodgson by name operated only to particularize the inquiry to the circumstances of the case at bar. This personalization did not transform the analysis into a solely subjective exercise. Indeed, the trial judge’s reasons make clear that she understood she was to assess whether Mr. Hodgson’s actions were reasonable in the circumstances, and she repeatedly and expressly referred to the appropriate objective standard….
[81] The trial judge’s reasons make clear that she correctly assessed whether Mr. Hodgson’s actions were reasonable in the circumstances under s. 34(1)(c) and that she did not inappropriately focus on what Mr. Hodgson himself thought at the time of the impugned conduct.
[82] Accordingly, we do not see any grounds for concluding that the trial judge erred in law in her analysis or in her application of the law on self-defence.
[83] For the reasons given, the appeal is allowed, and the acquittal is restored.
R v DB, 2024 ONCA 546
[July 8, 2024] Accused Reaction to Allegations and Crown Suggestion that Accused Motivated to Lie to Secure an Acquittal [Reasons by Coroza J.A. with Roberts and P.J. Monahan JJ.A. concurring]
AUTHOR’S NOTE: The accused in a criminal trial has a constitutionally protected right to remain silent. Any attempt by the Crown to use statements that fall short of admissions as evidence against the accused must be carefully managed by the courts, ensuring juries receive accurate instructions and judges provide proper consideration in their reasons for judgment. Arguments suggesting how a reasonable person should respond to an accusation can undermine the right to silence and shift the burden of proof. An accusation does not compel the accused to react in a specific manner, as individuals may respond differently due to anxiety, legal advice, or other factors. Such arguments are particularly dangerous and require strict control by the courts.
A second critical aspect of this case involves Crown counsel’s submissions implying that an accused’s motivation to secure an acquittal undermines their credibility. This line of reasoning is clearly unlawful. Anyone can be wrongfully accused of a crime, and using the act of being charged or undergoing trial as probative evidence against the accused’s credibility would invert the presumption of innocence. Courts must guard against this through precise jury instructions and careful reasoning in their judgments.
I. INTRODUCTION
[1] A jury convicted the appellant of three historical sexual offences against the complainant, his niece, when she was between the ages of six and ten. He was convicted of one count of sexual assault (s. 271), one of sexual interference (s. 151) and one of invitation to sexual touching (s. 152).
[2] The appellant raises three grounds of appeal on conviction.1 The first is that evidence of the appellant’s initial reaction, or lack thereof, when allegations were first made against him was not probative of an issue at trial and the jury was not properly instructed regarding this evidence. The second is that the Crown’s crossexamination and closing submissions improperly invited the jury to infer that the appellant lied to secure an acquittal and the trial judge ought to have given a correcting instruction on this point. The third is that the trial judge erred by failing to caution the jury regarding evidence of extrinsic misconduct.
[3] For the reasons that follow, I conclude that the jury was not sufficiently instructed regarding the lack of probative value of the reaction evidence nor regarding the impermissible reasoning about the appellant’s motive to lie invited by the Crown in its closing submissions. Accordingly, I would allow the appeal, quash the convictions, and order a new trial.
[7] The appellant testified at trial and denied all three incidents. He testified that he babysat the complainant and her brothers, but never touched the complainant for a sexual purpose and never invited sexual touching. As part of his narrative of the relevant time period, the appellant testified about having had a romantic affair with G.B. – his brother’s estranged wife and the complainant’s mother. However, they kept their affair a secret and did not behave inappropriately in front of G.B.’s children, including the complainant.
[8] G.B. also testified. While she described a friendly relationship with the appellant, she denied any romantic affair between them. It was the Crown’s ultimate position that the appellant was being dishonest about the affair, and that it never happened.
III. ISSUES ON APPEAL
[9] As noted above, the appellant raises three grounds of appeal. The appellant’s primary argument is that the Crown improperly asked the jury to draw an adverse inference against the appellant because he failed to do or say more after being confronted with these allegations in the 2017 call and that the trial judge should have instructed the jury to place no weight on this evidence. In the alternative, the appellant argues that even if the evidence had some probative value, the jury should have received an instruction that warned them against jumping to an incriminating conclusion without considering alternative explanations for the appellant’s behaviour.
[10] Second, the appellant argues that the trial judge was required to provide a limiting instruction regarding the Crown’s closing because it improperly suggested that the appellant had a motive to lie based on his status as the accused.
IV. ANALYSIS
(1) The Trial Judge Should have Warned the Jury that the Reaction Evidence had No Probative Value
(a) The Reaction Evidence Led at Trial
[12] At trial, G.B. testified that she confronted the appellant with the allegations her daughter had just disclosed to her during the 2017 call. This evidence would have assisted the jury in understanding the timing and context of the complainant’s disclosure to the police.
[13] G.B. testified that she was angry during the phone call and that she told the appellant what the complainant had told her about the allegations. The Crown objected to G.B. testifying about the appellant’s responses during the conversation and only asked her questions about what she told the appellant. The Crown also objected to defence counsel leading evidence during G.B.’s cross-examination that the appellant had denied the allegations.
[14] The appellant testified that he denied the allegations to G.B. and was “devastated” by them, stating: “My heart was pounding through my chest. I was thinking a million things in my head trying to figure out how this happened.” In cross-examination, the appellant testified that he was scared and really upset by the allegations. According to the appellant, G.B. told him not to contact her again and he took no further steps to contact G.B. or the complainant about the allegations.
[15] The Crown challenged the appellant at length about his reaction to being confronted with the allegations and his inaction in the aftermath. In particular, the Crown challenged the appellant on his decision not to contact G.B., the complainant, or his brother (the complainant’s father), to try to “get to the bottom” of the allegations. The cross-examination concluded with the following exchange:
Q. And I’m going to suggest to you, sir, that if you were innocent, if you had nothing to hide, you’d want to resolve this huge accusation that’s made against you?
A. Maybe.
Q. … I’m going to suggest to you that if you had nothing to hide and that if you didn’t do these terrible things, you’d want to address it with the family to get to the bottom of where this was coming from?
A. Maybe I should have.
[16] This theme of “getting to the bottom of it” featured prominently in the Crown’s closing address. The Crown argued at length that the appellant’s testimony with respect to his reaction and inaction following the initial confrontation with G.B. did not make sense and was therefore not credible. For example, the Crown said the following in her closing:
The most obvious example of the accused evidence not making sense is his testimony about how he behaved after [G.B.] confronted him about touching her daughter.
So as you heard [G.B.’s] confrontation of [the appellant] back in 2017 was pretty intense. So intense that on [the appellant’s] evidence in his own words, it left him devastated thinking a million things. Heart pounding through his chest, and importantly he was scared.
He was accused of sexually assaulting a young child, his own niece, his brother’s daughter, but after the accusation was made, he just never did or said anything about it.
Doesn’t common sense tell you that having been accused of sexually corrupting his young niece, if he were innocent, he would want to sit down and talk to his brother, his niece, or [G.B.] to figure out where this was coming from? To clear this up, to clear his name if what she was saying was not true. Or at least, if he were innocent, he might want to talk it through to put everyone else’s mind at ease given how serious these accusations were. But he didn’t seek to do any of those things.
[18] Defence counsel did not object to the Crown’s cross examination of the appellant, the Crown’s closing submissions, or the admission of the appellant’s evidence on these points, and he did not request a limiting or corrective instruction.
(b) Applicable Legal Principles
[19] Evidence of the accused’s demeanour upon being confronted with an allegation is notoriously unreliable: see R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.). In Levert, the complainant’s foster mother confronted the appellant with an accusation that he had touched the complainant inappropriately. The appellant denied the allegations, but according to the complainant’s foster mother, was “very, very, very calm” and “not on the defensive at all”. The appellant testified that he was generally a calm person and at the time the allegation was made he felt confident that the foster mother would find nothing improper. On appeal, Rosenberg J.A. expressed grave concerns about the admissibility of this evidence. 3 Rosenberg J.A. noted that this type of evidence “can be highly suspect and should be admitted at a criminal trial with caution”. This is because “[p]erceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal”: at paras. 25-27. Such evidence is predicated on an often unreliable assumption about how a “normal” person would react to a highly stressful and unusual situation, and because it assumes that outward appearance accurately reflects an individual’s state of mind: R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), at paras. 40-41, rev’d on other grounds in 2007 SCC 49, [2007] 3 S.C.R. 453; see also R. v. Wall (2005), 77 O.R. (3d) 784 (C.A.), at paras. 48-50; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 75-76; R. v. Morales (2006), 81 O.R. (3d) 161 (C.A.), at paras. 18-19; R. v. Perlett (2006), 82 O.R. (3d) 89 (C.A.), at para. 85, leave to appeal refused, [2007] S.C.C.A. No. 96.
[20] The caution called for in Levert is not limited to evidence about the accused’s demeanour in the sense of his appearance or presentation. It also applies to evidence of an accused’s actions or failure to do or say certain things when confronted with an allegation. In R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, following R. v. J.S.W., 2013 ONCA 593, 301 C.C.C. (3d) 252, this Court extended the principles from Levert to an accused’s failure to deny an allegation because, like demeanour evidence, the relevance of the accused’s failure to deny rests on an unreliable assumption about what a “normal” reaction looks like: at paras. 38- 40.
[21] This is not to say that the Crown is absolutely prohibited from leading evidence of an accused’s demeanour or reaction when confronted with an allegation, or with news that a victim has disappeared or died. Indeed, there are cases that have admitted such evidence.
[22] For example, in R. v. Staples, 2022 ONCA 266, leave to appeal refused, [2002] S.C.C.A. No. 182, the appellant was convicted of murdering his father and sister. Several witnesses, including the appellant’s ex-wife, testified that the appellant had been seen crying in the days after his father and sister went missing. On appeal, this court held that this demeanour evidence was properly admissible and had probative value. The key witness concerning the appellant’s crying was his ex-wife who was intimately familiar with him and “had a strong basis for believing that his demeanour was unusual”: at para. 39. In the context of the appellant’s stated belief at the time that his sister and brother had just gone away for a few days, the appellant’s demeanour was probative of guilt: at paras. 39-42….
[23] Furthermore, in certain circumstances an accused can be taken as having implicitly adopted an accusation as true based on their conduct or demeanour, or even based on their silence in circumstances that give rise to a reasonable expectation of reply: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-51, leave to appeal refused, [2014] S.C.C.A. No. 500. For example, in R. v. Gordon, 2022 ONCA 799, leave to appeal refused, [2023] S.C.C.A. No. 136, the appellant was convicted of murder. A friend of the victim and the appellant asked the appellant over the phone why he had not attended the victim’s funeral, and told the appellant that she had heard he was the one who killed the victim. The appellant responded: “shut up, shut up, shut up” and “this was not a conversation to be had on the phone”: at para. 13. The trial judge cautioned the jury about the use of this evidence. On appeal, this court found no error in the trial judge’s decision to leave this evidence with the jury because it was open to the jury to find that the appellant’s response to the accusations amounted to an adoption of the accusations as true: at para. 51.
[24] In sum, like evidence about the accused’s demeanour, evidence of an accused’s actions or inactions after being confronted with an allegation or difficult news may be relevant to a live issue in the case and more probative than prejudicial. However, it must be approached with caution. Ultimately, it will be up to the trial judge to remain vigilant for this type of evidence and to exercise their gatekeeping role. Where evidence is not relevant to a live material issue, it should be excluded or the jury should at least be instructed that the evidence has no probative value. Even where the evidence is relevant, trial judges still retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 109-10, per Martin J. (dissenting, but not on these points).
(c) The Appellant’s Reaction in this Case was Not Probative
[26] I do not find this submission persuasive. There was nothing internally contradictory about the appellant’s evidence concerning his reaction to the allegations and his failure to contact the complainant or G.B. after the 2017 call. The respondent’s submission rests on a flawed presumption that an innocent person in the appellant’s shoes was required to do something after he was confronted with the allegation. The appellant’s evidence was clear. He testified that he was trying to process why the complainant was making the allegation. Fairly read, the appellant’s position was that he was in a state of turmoil. Respectfully, his subsequent inaction did not reveal an internal contradiction in that testimony.
[27] Nor do I accept that the purpose of the Crown’s cross-examination was to show that the appellant’s evidence of his internal turmoil was contradictory. The following excerpts of the Crown’s cross-examination are particularly relevant:
Q. I’m going to suggest to you, sir, that if you were innocent, if you had nothing to hide, you’d want to resolve this huge accusation that’s made against you?
A. Maybe. Q. I’m going to suggest to you that if you had nothing to hide and if you didn’t do these terrible things, you’d want to address it with the family to get to the bottom of where this was coming from?
A. Maybe I should have. [Emphasis added.]
[28] Contrary to the respondent’s submission, the Crown did not use this evidence for the purpose of contradicting the appellant’s own evidence. Instead, the Crown argued that the appellant was guilty because, if he had been innocent, he would have inquired with the complainant or her parents about the accusations….
[29] In my view, the appellant’s failure to do or say more after being confronted with the allegation had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to “get to the bottom” of the allegations. The specific evidence in this case supports alternative explanations consistent with innocence for why the appellant did not do more to “get to the bottom” of the allegations. In particular:
The uncontested evidence that at the time of the 2017 call the appellant and his brother (the complainant’s father) had had a falling out and the appellant was not speaking to his brother.
The uncontested evidence that G.B. during the 2017 call asked the appellant not to reach out to her again.
The uncontested evidence that during the 2017 call the appellant asked G.B. if he could see the complainant, that G.B. responded that she would ask the complainant, that G.B. never told him that he could, and that the appellant never spoke to the mother about this again after that.
[30] The cross-examination of the Crown and her closing submissions served only to invite an inference predicated on unreliable assumptions about what an innocent person would do in the appellant’s circumstances. Aside from the evidence in this particular case, there are also many reasons why an innocent person in general may not have followed up with their family members in the face of an accusation of this nature, and why it would be hazardous for a jury member to infer guilt from this behaviour. For example, a person accused of sexually assaulting a family member may prefer not to talk to the alleged victim or other family members about the allegation in the hopes that the allegations would blow over – not because the person is guilty, but because an innocent person has an interest in avoiding arrest and a trial on false charges. Moreover and relatedly, the accused may also have sought legal advice and been advised against speaking with anyone. [Emphasis by PJM]
[31] In sum, the appellant’s inaction following the accusation in the 2017 call was equally consistent with innocence as with guilt. This evidence had no probative value insofar as it was introduced to show that the appellant was guilty because an innocent person would have done more in response to these allegations. There was no basis to believe that the appellant’s testimony was contradictory or that his failure to do something or say anything after the 2017 call was probative of his credibility or guilt.
[33]….This court in Chafe affirmed the importance of properly instructing the jury on after-the-fact reaction evidence. In Chafe, while Benotto J.A. made no comments on whether the appellant’s response to an allegation should have been admitted in the first place, she observed that at the very least, the trial judge was required to instruct the jury that they should place no weight on the appellant’s response to an undetailed allegation. This would include an instruction that there is no “normal” way for a person to react when faced with an accusation of wrongdoing: at para. 45. A similar instruction should have been given in this case.
[34] A caution is extremely important when this type of evidence is introduced in a criminal trial. That is because jurors cannot be expected to have had experience in being accused, in this case of a historical sexual crime, and it is difficult to predict how a “normal”, innocent person would react in those circumstances: Trotta, at para. 40. This is perhaps particularly so in the interfamilial context, given all the possible specificities of the family’s history, dynamics, and current circumstances.
[36] Accordingly, notwithstanding the failure of defence counsel to object, the circumstances of this case were such that the trial judge should have instructed the jury that the reaction evidence had no probative value and his failure to do so is an error of law: Abdullahi, at para 49.
(2) The Trial Judge Should have Warned the Jury not to Presume that the Appellant had a Motive to Lie because he was Accused
(a) The Crown’s Closing
[37] The Crown’s closing is replete with references to the idea that the appellant’s testimony was concocted. The Crown also said the following in her address to the jury:
[Y]ou can consider [the appellant’s] motive to be dishonest in his testimony when you’re assessing his credibility. Obviously, in order to walk from these charges [the appellant] has to claim that he didn’t do the things that [the complainant] alleges. There’s no doubt that he has a strong reason for asserting that. [Emphasis added.]
[38] At another point in the closing the Crown “urge[d]” the jury “to reject [the appellant’s] testimony on these issues as efforts to get out from under the credible and truthful allegations that [the complainant] has made before you.”
[39]….Regrettably, the trial judge did not rule on the issue, nor did he include the instruction that defence counsel was seeking in the charge.
(b) Applicable Legal Principles
[40] In Laboucan, the Supreme Court of Canda held that while there is no absolute prohibition against considering an accused’s motive to lie in assessing their credibility, this type of submission is fraught with risk because it can potentially undermine the presumption of innocence. Accordingly, where the issue is raised at trial, juries should be instructed not to presume that an accused will lie to avoid conviction. Such an instruction is consistent with one of jury instructions’ central goals: to ensure jurors do not engage in assumptions or forms of reasoning that do not respect fundamental principles such as the presumption of innocence: see R. v. Hayles-Wilson, 2022 ONCA 790, 165 O.R. (3d) 97, at para. 31.
(c) A Correcting Instruction on the Implied Motive to Lie was Required
[41] The appellant argues that the trial judge’s failure to provide a limiting instruction on the Crown’s argument would have misled the jury, causing them to place undue weight on the Crown’s argument, and ultimately undermining the presumption of innocence.
[42] The respondent argues that no special instruction was required in this case because the Crown was simply encouraging the jury to conclude that the appellant was not credible based on inconsistencies and illogicalities in his evidence.
[43] I reject the respondent’s argument that the Crown’s closing did not engage in the problematic line of reasoning identified by the Supreme Court in Laboucan. The closing address, when read as a whole, expressly urged the jury to find the appellant’s testimony was concocted by the appellant “in order to walk away from these charges”. This was improper and offended the presumption of innocence. The trial judge should have corrected the Crown’s submissions: see HaylesWilson, at para. 34.
V. CONCLUSION
[46] I would allow the appeal, quash the convictions, set aside the sentence, and order a new trial. Given my proposed disposition of the conviction appeal, I do not reach the sentence appeal.
R v Belval, 2024 ABCA 215
[June 20, 2024] s.276: Court Duty to Act as a Continuing Gatekeeper on Prior Sexual History Evidence [Jack Watson, Alice Woolley, Josh Hawkes JJ.A.]
AUTHOR’S NOTE: A trial judge’s duty as a continuing gatekeeper over prior sexual history evidence serves a dual purpose. They must prevent the defense from using such evidence without a successful s.276 application, and they must also continuously evaluate whether the facts of the case have changed sufficiently to reconsider prior s.276 rulings.
In this case, what initially seemed like a mere suggestion in a prior application—that a previous text exchange about sexual interest might indicate future consent—evolved significantly during the trial. The accused claimed that he referred back to this prior discussion right before the sexual activity in question to gauge current consent. This change in context transformed the prior sexual history from inadmissible evidence to highly probative admissible evidence.
The Court of Appeal determined that the trial judge’s role as a continuing gatekeeper required them to reassess this issue in light of the new context before rendering judgment.
