Supreme Court of Canada

Appeal Heard and Judgment Rendered: February 15, 2024 Reasons for Judgment: July 12, 2024 Docket: 40498

Parties

Between:

Daniel Hodgson — Appellant

and

His Majesty The King — Respondent

— and —

Attorney General of Ontario and Criminal Trial Lawyers' Association — Interveners

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.

Joint Reasons for Judgment: (paras. 1 to 83) Martin and Moreau JJ. (Wagner C.J. and Karakatsanis, Côté, Kasirer, Jamal and O'Bonsawin JJ. concurring)

Concurring Reasons: (paras. 84 to 86) Rowe J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Indexed as: R. v. Hodgson

2024 SCC 25

File No.: 40498.

Hearing and judgment: February 15, 2024.

Reasons delivered: July 12, 2024.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.

on appeal from the court of appeal for nunavut

Headnote

Criminal law — Appeals — Acquittal — Right of Crown to appeal against judgment or verdict of acquittal — Accused acquitted of second degree murder and lesser included offence of manslaughter at trial — Crown appealing acquittal — Court of Appeal overturning acquittal and ordering new trial — Whether trial judge committed errors of law giving rise to right of Crown to appeal acquittal — Criminal Code, R.S.C. 1985, c. 46, s. 676(1)(a).

Criminal law — Murder — Elements of offence — Mens rea — Victim dying after being put in chokehold by accused — Trial judge acquitting accused of second degree murder on basis that Crown did not establish mens rea — Crown appealing acquittal — Whether trial judge was required to accept that chokehold is inherently dangerous act when assessing mens rea for murder.

Criminal law — Defences — Self‑defence — Victim dying after being put in chokehold by accused — Accused claiming self‑defence — Trial judge finding accused not guilty of manslaughter on basis that Crown failed to establish that chokehold was not reasonable in circumstances — Whether trial judge erred in approach to self‑defence — Criminal Code, R.S.C. 1985, c. 46, s. 34(2).

H attended a house party and was asked to assist with removing another guest who refused to leave despite repeated requests to do so. A physical altercation ensued during which H used a chokehold to restrain the guest, who lost consciousness and died. The trial judge found that it was proven beyond a reasonable doubt that H caused the guest's death by placing him in a chokehold. However, based on her assessment of the evidence, she acquitted H of second degree murder because the Crown failed to establish the requisite subjective mens rea. She also found H not guilty of the lesser included offence of manslaughter, finding that his defence of self‑defence under s. 34 of the Criminal Code had an air of reality and that the Crown had failed to establish that the chokehold was not reasonable in all of the circumstances. The Court of Appeal allowed the Crown's appeal of the acquittal and directed that a new trial be held on the basis that the trial judge erred in law in her analysis of the mens rea for murder and the application of self‑defence to manslaughter.

Held: The appeal should be allowed and the acquittal restored.

Per Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.: The Crown has a limited right of appeal on questions of law alone when it seeks to overturn an acquittal. In the instant case, the Court of Appeal did not articulate the precise errors of law at the root of its intervention and it is not a case in which the appellate court could reach a purely legal conclusion drawn from the evidence without calling into question the trial judge's evaluation of the evidence. Furthermore, even if the alleged errors were ones of law, the trial judge did not commit any such errors. While an inference that a chokehold is an inherently dangerous action can be 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, and there was no error of law in the trial judge's assessment of the evidence on the mens rea. As for self‑defence, the trial judge followed the framework set out in the Criminal Code, specifically addressed each of its three elements, correctly stated the applicable statutory principles, applied them to the facts as found, and expressed clear conclusions on each element.

The Crown's ability to appeal an acquittal is circumscribed by s. 676(1)(a) of the Criminal Code. This provision provides that a court's jurisdiction to hear an appeal of an acquittal depends upon there being an error involving a question of law alone. The restricted nature of the Crown's ability to appeal from an acquittal has deep roots in the principles that underlie the Canadian criminal justice system. The most important justification behind the limited nature of the Crown's right of appeal lies in the principle against double jeopardy. Expanding the Crown's right of appeal beyond its proper scope would have a profound impact on the interests of accused persons, especially due to the considerable anxiety created by the prospect of a new trial after a person has been acquitted.

The scope of the Crown's right of appeal of an acquittal depends on what qualifies as a legal question. An 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. A trial judge's alleged shortcomings in assessing the evidence may constitute an error of law giving rise to a Crown appeal of an acquittal where the trial judge made a finding of fact for which there is no evidence; there is disagreement with respect to the legal effect of findings of fact or of undisputed facts; an assessment of the evidence is based on a wrong legal principle; and there is a failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence. However, even if the Crown is able to point to an error of law, acquittals are not overturned lightly. 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.

Given the circumscribed ambit of the Crown's right of appeal from acquittals and the pressing policy considerations that underpin it, appellate courts should expressly identify the offending errors of law. A failure to precisely identify the error of law risks expanding Crown appeals beyond the scope of s. 676. This risk is especially high when the error pertains to an alleged shortcoming in the trial judge's handling of the evidence. It is not enough to simply assert or state that a trial judge has committed a legal error with respect to their assessment of the evidence. Appellate courts should articulate with precision how the trial judge erred in law.

In the instant case, the Court of Appeal did not adequately explain why the error it claimed to have identified was one of law alone for the purposes of s. 676(1)(a). The court did not find fault with how the trial judge stated or interpreted the legal standard for the mental element for murder. Rather, it alleged that the error of law was based on how the trial judge assessed the evidence. 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 and makes it unclear as to whether the alleged error is one of law. In this case, there is no error of law.

There is no legal rule as to the general dangerousness of chokeholds. Each case must be assessed on its own facts. The dangerousness of a chokehold can vary based on factors such as its nature, force and length. 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. 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. Thus, when considering the mens rea for murder, a trial judge should not be and cannot be required to assess an accused's intention against the fact that someone else in their position should have or would have been aware of the danger the chokehold posed. 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. Neither of these findings would meet the requisite level of subjective intent required for a murder conviction, namely that the accused intended to cause death or that the accused intended to cause bodily harm that they knew was likely to cause death but was reckless as to whether or not death ensued.

In the instant case, the trial judge accepted that, at the time, H 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. The trial judge reviewed all the evidence in detail and ultimately concluded that she had a reasonable doubt as to whether H intended to kill the deceased or knew that the chokehold was likely to do so. The trial judge's conclusion that there was no intent to murder was firmly grounded in the evidence pertaining to H's subjective state of mind. The Court of Appeal 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 was not an error of law that justified overturning an acquittal.

An objective approach is applied to the aspects of the self‑defence analysis that measure an accused's actions against those of a reasonable person in similar circumstances. In the instant case, the trial judge's reasons make clear that she understood she was to assess whether H's actions were reasonable in the circumstances and she repeatedly and expressly referred to the appropriate objective standard. The trial judge did not inappropriately focus on what H himself thought at the time of the impugned conduct. The Court of Appeal's failure to clearly identify which element of the self‑defence inquiry was engaged was problematic as each has its own considerations and methods of evaluation. There were no grounds for concluding that the trial judge erred in law in her analysis or in her application of the law on self‑defence.

Per Rowe J.: There is agreement with the majority that self‑defence applies and that the acquittal should be restored. However, separate reasons to clarify the Crown's right to appeal an acquittal are necessary. While the majority emphasizes that the Crown's right to appeal an acquittal is narrow and limited, there is an exception that warrants note. As "myths" relating to sexual assault have been characterized as errors of law, where the Crown characterizes an aspect of a trial judge's reasons as incorporating a "myth", it would meet the requirement that the appeal be on a question of law alone.

Cases Cited

By Martin and Moreau JJ.

Applied: R. v. Khill, 2021 SCC 37; considered: R. v. Lemmon, 2012 ABCA 103, 65 Alta. L.R. (5th) 177; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146; referred to: LSJPA – 151, 2015 QCCA 35; R. v. Budai, 2001 BCCA 349, 153 B.C.A.C. 98; Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616; Cullen v. The King, 1949 CanLII 7 (SCC), [1949] S.C.R. 658; Wexler v. The King, 1939 CanLII 41 (SCC), [1939] S.C.R. 350; Rose v. The Queen, 1959 CanLII 67 (SCC), [1959] S.C.R. 441; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; R. v. Cowan, 2021 SCC 45; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438; R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Rasberry, 2017 ABCA 135, 55 Alta. L.R. (6th) 134; R. v. Curran, 2019 NBCA 27, 375 C.C.C. (3d) 551; R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32; R. v. Grant, 2016 ONCA 639, 351 O.A.C. 345; R. v. Richter, 2014 BCCA 244, 357 B.C.A.C. 305; R. v. Constantine, 2015 ONCA 330, 335 O.A.C. 35; R. v. A.A., 2019 BCCA 389; R. v. Androkovich, 2014 ABCA 418.

By Rowe J.

Referred to: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Kruk, 2024 SCC 7.

Statutes and Regulations Cited

Act further to amend the Criminal Code, 1892, S.C. 1900, c. 46, s. 3.

Act to amend the Criminal Code, S.C. 1909, c. 9, s. 2.

Act to amend the Criminal Code, S.C. 1923, c. 41, s. 9.

Act to amend the Criminal Code, S.C. 1930, c. 11, s. 28.

Bill 138 (House of Commons), Act to amend the Criminal Code, 4th Sess., 16th Parl., 1930, s. 38 (Explanatory Note).

Canadian Charter of Rights and Freedoms, s. 11(h).

Criminal Code, R.S.C. 1927, c. 36, s. 1013(4).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 34, 276, 676.

Criminal Code, 1892, S.C. 1892, c. 29, ss. 743, 744.

Criminal Justice Act 2003 (U.K.), 2003, c. 44, ss. 57(4), 63, 67, 76(3), (4), 77, 78, 79.

Authors Cited

Berger, Benjamin L. "Criminal Appeals as Jury Control: An Anglo-Canadian Historical Perspective on the Rise of Criminal Appeals" (2006), 10 Can. Crim. L.R. 1.

Coughlan, Steve. Criminal Procedure, 4th ed. Toronto: Irwin Law, 2020.

Desjardins, Tristan. L'appel en droit criminel et pénal, 2nd ed. Montréal: LexisNexis, 2012.

Friedland, Martin L. Double Jeopardy. Oxford: Clarendon Press, 1969.

Newfoundland and Labrador. Department of Justice and Public Safety. Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, 2022.

Stewart, Hamish. "Procedural Rights and Factual Accuracy" (2020), 26 Legal Theory 156.

Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2023, 30th ed. Montréal: Yvon Blais, 2023.

APPEAL from a judgment of the Nunavut Court of Appeal (Schutz, Campbell and Pentelechuk JJ.A.), 2022 NUCA 9, [2022] Nu.J. No. 33 (Lexis), 2022 CarswellNun 35 (WL), setting aside the acquittal of the accused for second degree murder and ordering a new trial. Appeal allowed.

Michael Lacy and Marcela Ahumada, for the appellant.

Julie Laborde and Brendan Green, for the respondent.

Manasvin Goswami, for the intervener the Attorney General of Ontario.

Stacey M. Purser and Daniel J. Song, K.C., for the intervener the Criminal Trial Lawyers' Association.

Reasons for Judgment

The reasons for judgment of Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. were delivered by

Martin and Moreau JJ. —

Table of Contents

Section	Paragraph
I. Introduction	1
II. Facts	5
III. Judgments Below	10
A. Nunavut Court of Justice (Charlesworth J.)	10
B. Nunavut Court of Appeal, 2022 NUCA 9 (Schutz, Campbell and Pentelechuk JJ.A.)	14
IV. Issues	18
A. What Does It Mean That a Crown Appeal of an Acquittal Under Section 676(1)(a) of the Criminal Code Is Limited to a Ground of Appeal That Involves a Question of Law Alone?	19
(1) Historical Foundations of the Crown's Limited Right of Appeal	22
(2) Rationales for the Crown's Limited Right of Appeal	26
(3) Defining the Scope of the Crown's Limited Right of Appeal	32
(4) Failure to Articulate an Error of Law for the Mens Rea for Murder	37
B. Did the Trial Judge Err in Law Regarding the Mens Rea for Second Degree Murder?	45
(1) The Legal Test for Mens Rea	47
(2) No Error of Law in Respect of Lemmon and Cooper	59
(3) Did the Trial Judge Err in Law in Failing to Consider the Common Sense Inference?	65
C. Did the Trial Judge Err in Law in Relation to Self-Defence?	70
V. Disposition	83

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 self-defence 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. The Nunavut Court of Appeal agreed and directed that a new trial be held on the basis that the trial judge erred in law in her analysis of the mens rea for murder and the application of self-defence to manslaughter.

[3] On further appeal to this Court, after the hearing, we restored Mr. Hodgson's verdict of acquittal and stated that written reasons would follow. These are those reasons.

[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.

II. Facts

[5] Mr. Hodgson and Mr. Winsor (the deceased) both attended a house party in Iqaluit on the evening of May 18, 2017. Earlier in the night, Mr. Hodgson and Mantra Ford-Perkins were out celebrating a friend's birthday. They ran into Crystal Mullin and two others (Margaret Sikkinerk and Samantha Mullin). Crystal Mullin invited all of them to her home. Shawn Burke and his friend, Mr. Winsor, were out on their own and were also invited to Crystal Mullin's home. All of the house party attendees were socializing and drinking together. 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. At the time, Mr. Hodgson was 38 years old, 6 feet tall, weighed 210 pounds and was quite strong. Mr. Winsor was 23 years old, 5 feet 8 inches tall and weighed 304 pounds. 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 left the bedroom and intervened in the altercation between Mr. Burke and Mr. Winsor after he believed that he saw Mr. Winsor make a fist. At the time, Mr. Hodgson's dominant hand was injured. 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.

III. Judgments Below

A. Nunavut Court of Justice (Charlesworth J.)

[10] The evidence before the court included an agreed statement of facts, the testimony of Mr. Hodgson and the individuals at the party, and expert evidence from the Crown and defence opining on the cause of death. It was not disputed that a significant amount of pressure fractured Mr. Winsor's hyoid bone, bruised the muscles in his neck, and caused internal hemorrhaging. Neck compression can lead to unconsciousness in as little as 10 seconds, but it is not uncommon for someone to become unconscious and survive without permanent injury. While the pathologists saw the neck compression as the primary factor in Mr. Winsor's death, they disagreed as to the role other factors may have played in causing it. Dr. Chiasson, the defence pathologist, viewed Mr. Winsor's enlarged heart and the consumption of alcohol and cocaine as contributing factors to his death. The Crown expert, Dr. Milroy, disagreed, although he acknowledged that these factors could make Mr. Winsor less likely to survive the chokehold.

[11] The trial judge conducted a thorough review of the evidence of Mr. Hodgson and each witness and made explicit findings of facts, including conclusions on credibility and reliability.

[12] The trial judge found that it was proven beyond a reasonable doubt that Mr. Hodgson caused Mr. Winsor's death by placing Mr. Winsor in a chokehold. However, based on the trial judge's assessment of the evidence, she acquitted Mr. Hodgson of second degree murder because the Crown failed to establish the requisite subjective mens rea attaching to this serious crime, that is, proof beyond a reasonable doubt that "Mr. Hodgson intended to kill or intended to cause bodily harm that he knew was likely to kill" (trial reasons, at para. 93, reproduced in A.R., part I, at p. 24).

[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. While indicating that proportionality was the factor causing the most concern, the trial judge found that Dr. Chiasson's evidence raised the possibility that the chokehold may have only been fatal because of factors specific to Mr. Winsor, which were not known to Mr. Hodgson. Given her doubt as to whether Mr. Hodgson's use of a chokehold was disproportionate in the circumstances, the trial judge found Mr. Hodgson not guilty of manslaughter.

B. Nunavut Court of Appeal, 2022 NUCA 9 (Schutz, Campbell and Pentelechuk JJ.A.)

[14] In a brief decision, the Nunavut Court of Appeal allowed the Crown's appeal from the acquittal and ordered a new trial.

[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 address [the issue of inherent dangerousness] in her reasons for acquittal, either in respect of the intent for murder or manslaughter, but, rather, appeared to accept that a chokehold was a "regular 'calm down' method" or a "known calm down move". While [Mr. Hodgson] admitted he was trying to stop Mr Winsor from struggling, including possibly rendering him unconscious, 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. But for this error, the verdict on second degree murder may well have been different. [Emphasis added.]

[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.

[17] The court concluded that the Crown had met its burden of demonstrating that the errors of law had a material bearing on the acquittal.

IV. Issues

[18] This appeal raises three issues:

1. What does it mean that a Crown appeal of an acquittal under s. 676(1)(a) of the Criminal Code is limited to a ground of appeal that involves a question of law alone?

2. Did the trial judge err in law regarding the mens rea for second degree murder?

3. Did the trial judge err in law in relation to self-defence?

A. What Does It Mean That a Crown Appeal of an Acquittal Under Section 676(1)(a) of the Criminal Code Is Limited to a Ground of Appeal That Involves a Question of Law Alone?

[19] In Canadian law, the Crown's ability to appeal an acquittal is circumscribed by s. 676(1)(a) of the *Criminal Code*. It reads:

676 (1) The Attorney General or counsel instructed by him for the purpose 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;

A court's jurisdiction to hear and address an appeal of an acquittal thus depends upon there being an error involving "a question of law alone".

[20] Mr. Hodgson concedes that the error identified by the Court of Appeal in relation to self-defence, if made, would qualify as an error of law under s. 676(1)(a). However, with respect to the mens rea for murder, Mr. Hodgson submits there was no question or error of law that would allow the Court of Appeal to intervene.

[21] To address this argument, we look to the principles and historical foundations informing the narrow scope of the Crown's right to appeal from an acquittal; canvass the meaning of the term "question of law alone"; give guidance on the level of specificity that Crown counsel and appellate courts must provide when invoking a question of law alone to overturn an acquittal; and explain why the Court of Appeal failed to identify an error of law with respect to the intent for murder.

(1) Historical Foundations of the Crown's Limited Right of Appeal

[22] In Canada, for many years, the Crown had no right to appeal from acquittals. The right to appeal acquittals was first introduced in 1892.[^1] [^2]

[23] These amendments met with significant resistance. The historical record indicates a perception that Crown appeals of acquittals and the resulting double jeopardy risk were fundamentally unjust. As Rand J. observed in *Cullen v. The King*, 1949 CanLII 7 (SCC), [1949] S.C.R. 658, at p. 671, "to allow an appeal from the acquittal would go against the deepest instincts of the Anglo-Saxon jury system".[^3]

[24] In 1923, the Crown's right of appeal from acquittals was refined to the right to appeal only on questions of law (S.C. 1923, c. 41, s. 9), and then in 1930, this right became further limited to questions of law alone (S.C. 1930, c. 11, s. 28). When this restriction was introduced, the explanatory note to the accompanying bill emphasized: "The proposed section would limit the right of appeal to questions of law alone, which would prevent many unnecessary appeals" (Bill 138 (House of Commons), Act to amend the Criminal Code, 4th Sess., 16th Parl., 1930, s. 38 (Explanatory Note)).

[25] The Criminal Code has retained this limitation since 1930. It remains in the current s. 676(1)(a): a Crown appeal of an acquittal is permitted only on "a ground of appeal that involves a question of law alone".

(2) Rationales for the Crown's Limited Right of Appeal

[26] The restricted nature of the Crown's ability to appeal from an acquittal has deep roots in the principles that underlie the Canadian criminal justice system.

[27] The most important justification behind the limited nature of the Crown's right of appeal lies in the principle against double jeopardy. This principle is entrenched in the *Canadian Charter of Rights and Freedoms*, s. 11(h), which provides that "[i]f finally acquitted of the offence, [a person] has the right not to be tried or punished for it again". While an acquittal on a Crown appeal does not technically result in a second conviction for the same crime, it still affects important interests engaged by the double jeopardy principle. Expanding the Crown's right of appeal beyond its proper scope would have a profound impact on the interests of accused persons, especially due to the considerable anxiety created by the prospect of a new trial after a person has been acquitted: see *R. v. Morgentaler*, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at p. 47.

[28] The finality of verdicts is a second rationale. Having the Crown appeal an acquittal compromises the finality of a verdict, which itself is a core value of the criminal justice system: *R. v. Potvin*, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 907. Finality supports the certainty, order, and predictability of trial results. When a verdict of acquittal is final, there is no risk of future jeopardy to the accused: see Friedland, at pp. 2-3 and 6; Coughlan, at pp. 457-58.

[29] A third rationale for limiting the Crown's right of appeal is the principle of jury sovereignty, particularly in cases where a jury has deliberated and returned a verdict of acquittal. This Court has held that jury verdicts of acquittal cannot be reviewed or interfered with. An acquittal by a jury represents the community's moral judgment that an accused is not deserving of condemnation. The law therefore does not contemplate the Crown appealing a jury acquittal: see *R. v. Biniaris*, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23.

[30] These rationales — double jeopardy, finality, and jury sovereignty — explain why the Crown's right to appeal from an acquittal is "narrow and limited" (*R. v. J.M.H.*, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25) and "strictly confined" (*R. v. Rudge*, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 21).

[31] There is also a broader societal interest at stake. The criminal justice system is charged with protecting individuals not only from criminal wrongdoing, but also from the power of the state. Subjecting acquitted accused persons to possible future jeopardy would undermine public confidence in the justice system.

(3) Defining the Scope of the Crown's Limited Right of Appeal

[32] The scope of the Crown's right of appeal of an acquittal depends on what qualifies as a legal question. This Court has long distinguished between questions of law (which can be reviewed by an appellate court) and questions of fact (which cannot).

[33] Generally, an error of law is traceable to a wrong legal principle; an error of fact is one of inference or of fact-finding. In the context of jury instructions, for example, "instructions which misstate the law or fail to give necessary instructions on the law are questions of law; instructions which may be confusing or ambiguous but do not misstate the law are questions of mixed fact and law or of fact" (*R. v. Chung*, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 18).

[34] An 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. 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). This Court has identified four such situations:

(1) [where] the trial judge made a finding of fact for which there is no evidence;

(2) [where] there is disagreement with respect to the legal effect of findings of fact or of undisputed facts;

(3) [where] an assessment of the evidence is based on a wrong legal principle; and

(4) [where] there is a failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence. [J.M.H., at para. 24, citing *R. v. Morin*, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286.]

[35] Even if the Crown is able to point to an error of law, acquittals are not overturned lightly. 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: *R. v. Graveline*, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14.

[36] Given the circumscribed ambit of the Crown's right of appeal from acquittals and the pressing policy considerations that underpin it, appellate courts should expressly identify the offending errors of law. A failure to precisely identify the error of law risks expanding Crown appeals beyond the scope of s. 676. This risk is especially high when the error pertains to an alleged shortcoming in the trial judge's handling of the evidence. It is not enough to simply assert or state that a trial judge has committed a legal error with respect to their assessment of the evidence. Appellate courts should articulate with precision how the trial judge erred in law.

(4) Failure to Articulate an Error of Law for the Mens Rea for Murder

[37] In the instant case, the Court of Appeal did not adequately explain why the error it claimed to have identified was one of law alone for the purposes of s. 676(1)(a). The court did not find fault with how the trial judge stated or interpreted the legal standard for the mental element for murder. Rather, it alleged that the error of law was based on how the trial judge assessed the evidence.

[38] The Court of Appeal did not state precisely what error of law it thought was committed in relation to the mens rea for murder. Even considering the Court of Appeal's reasons as a whole, the only error articulated appears to be that the trial judge did not address the Crown's argument that a chokehold is inherently dangerous. As will be explained in more detail below (at paras. 59-69), this was not an error of law that would allow for a Crown appeal of an acquittal.

[39] The absence of a clearly articulated error of law makes it difficult to conduct effective appellate review and makes it unclear as to whether the alleged error is one of law. In this case, there is no error of law.

[40] We are nonetheless mindful that, in some instances, it may not be possible to articulate the precise error committed by the trial judge without considering the evidence in detail. In assessing what qualifies as a question of law alone, courts should look to the reasons of the trial judge in a holistic manner, with proper regard for the relevant principles, rather than scrutinizing each sentence of the trial judge's reasons with "analytical microscopy": *R. v. Sheppard*, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28.

[41] In our view, a reviewing court faced with a Crown appeal of an acquittal should ask the following questions: (1) What is the alleged error? (2) Is it an error of law? (3) Would the verdict necessarily have been different but for that error?

[42] As to the first question, the Court of Appeal did not adequately identify the precise error of law it found with respect to the mens rea for murder. As noted above, it appears that the court took issue with the trial judge's failure to address the Crown's argument based on Lemmon that a chokehold is inherently dangerous. But this characterization raises the second question: is this an error of law?

[43] As we explain below at paras. 59-69, the Crown's argument based on Lemmon does not establish any legal obligation on the trial judge. In particular, the trial judge was not required by any legal principle to treat a chokehold as inherently dangerous.

[44] Since there is no error of law, the Court of Appeal had no jurisdiction to set aside the acquittal. We accordingly allow the appeal and restore the acquittal on this basis alone.

B. Did the Trial Judge Err in Law Regarding the Mens Rea for Second Degree Murder?

[45] On the off chance that we are wrong in our assessment that there is no error of law as regards the Crown's right of appeal for the mens rea issue, we also address whether the trial judge actually made any error of law in her analysis of the mens rea for second degree murder.

[46] The Court of Appeal perceived two errors: (1) the trial judge failed to consider whether the chokehold could be considered an inherently dangerous act based on the proposition from Lemmon that was urged upon her; and (2) the trial judge failed to consider the common sense inference available in the circumstances. In our view, neither of these involved errors of law.

(1) The Legal Test for Mens Rea

[47] We begin with the legal test for mens rea for murder. There are two paths to liability for murder under s. 229(a) of the *Criminal Code*: (i) the accused caused the death of a human being and meant to cause their death; or (ii) the accused meant to cause the victim bodily harm and knew that it was likely to cause death and was reckless whether death ensued or not. Both require proof of subjective intent — the accused must have actually intended to cause death, or must have actually intended to cause bodily harm that they knew was likely to cause death.

[48] The Crown's argument before this Court on the mens rea issue is that the trial judge erred in law by not accepting that, as a matter of law, a chokehold is an inherently dangerous act. The Crown submits that this recognition of inherent dangerousness would have been legally required by this Court's decision in *R. v. Cooper*, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, and the Alberta Court of Appeal's decision in *R. v. Lemmon*, 2012 ABCA 103, 65 Alta. L.R. (5th) 177.

[49] The Crown is wrong. We see no basis for a legal rule that a chokehold is always an inherently dangerous act. Cooper does not support such a rule.

[50] Cooper stands for the proposition that a chokehold can satisfy the actus reus and the subjective mens rea of murder in appropriate circumstances, given that it can cause death. Cooper does not stand for the proposition that a chokehold is always an inherently dangerous action. 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.

[51] Lemmon recognized that in that case, the chokehold at issue was an inherently dangerous act — not that all chokeholds are inherently dangerous. Indeed, the Alberta Court of Appeal in Lemmon recognized that the dangerousness of a chokehold depends on the circumstances: "A chokehold applied to a particular individual in particular circumstances may be known to be life-threatening" (Lemmon, at para. 39 (emphasis added)).

[52] There is no legal rule as to the general dangerousness of chokeholds. Each case must be assessed on its own facts. The dangerousness of a chokehold can vary based on factors such as its nature, force and length.

[53] 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. As this Court has consistently held, the subjective intent required for murder cannot be satisfied by proof of objective foreseeability alone: *R. v. Vaillancourt*, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636; *R. v. Martineau*, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633.

[54] Thus, when considering the mens rea for murder, a trial judge should not be and cannot be required to assess an accused's intention against the fact that someone else in their position should have or would have been aware of the danger the chokehold posed. 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.

[55] Neither of these findings would meet the requisite level of subjective intent required for a murder conviction, namely that the accused intended to cause death or that the accused intended to cause bodily harm that they knew was likely to cause death but was reckless as to whether or not death ensued.

[56] While it is true that in some cases, evidence of the dangerousness of a chokehold may be sufficient to allow a trier of fact to infer that the accused subjectively knew the chokehold was likely to cause death, this inference must still be grounded in the subjective intent of the accused. Evidence that a chokehold is dangerous is evidence that can assist a trier of fact in assessing whether the accused actually intended to kill or cause serious harm likely to cause death. This does not, however, lead to the conclusion that an accused's use of a chokehold in circumstances where they did not intend to kill can constitute the mens rea for murder.

[57] A finding that a chokehold is inherently dangerous is therefore not a legal requirement for a conviction of murder. Whether a chokehold was applied in circumstances that allow for an inference of the requisite mens rea depends on the facts of the specific case. A trial judge errs in law if they fail to consider the dangerousness of the chokehold when assessing the accused's mens rea. However, there is no legal obligation on a trial judge to accept any particular inference about the accused's mens rea based on the dangerousness of the chokehold.

[58] In the instant case, 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. The trial judge reviewed all the evidence in detail and ultimately concluded that she had a reasonable doubt as to whether Mr. Hodgson intended to kill the deceased or knew that the chokehold was likely to do so. The trial judge's conclusion that there was no intent to murder was firmly grounded in the evidence pertaining to Mr. Hodgson's subjective state of mind. The Court of Appeal 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 was not an error of law that justified overturning an acquittal.

(2) No Error of Law in Respect of Lemmon and Cooper

[59] The Crown argued before the Court of Appeal that the trial judge erred in law by failing to address the Lemmon and Cooper decisions. We disagree.

[60] The trial judge was presented with a specific argument by the Crown: Lemmon establishes that a chokehold is an inherently dangerous act. However, as we explained above, Lemmon establishes only that a chokehold can be an inherently dangerous act — not that it always is. The trial judge was therefore correct not to accept the Crown's argument as a matter of law.

[61] Moreover, Cooper does not stand for the proposition the Crown urges. The accused in Cooper was ultimately convicted of manslaughter rather than murder, based on the jury's finding on the evidence, and the SCC held that there was sufficient evidence to support that finding. The case does not establish any legal rule about the inherent dangerousness of chokeholds.

[62] The trial judge considered all the evidence before her and made findings of fact based on that evidence. She was entitled, on the evidence she accepted, to conclude that Mr. Hodgson lacked the mens rea for murder.

[63] The trial judge was not required to make any specific finding about the inherent dangerousness of a chokehold as a matter of law. The analysis of whether an accused intended to kill or knew that death was likely is necessarily fact-specific and, as such, is a finding of fact and not one of law.

[64] The Court of Appeal's conclusion that the trial judge was required as a matter of law to address whether a chokehold is inherently dangerous was wrong. The trial judge was obligated to assess the evidence pertaining to Mr. Hodgson's subjective state of mind, and she did so.

(3) Did the Trial Judge Err in Law in Failing to Consider the Common Sense Inference?

[65] The Crown also argued that the trial judge erred in law by failing to apply the common sense inference: that a person intends the natural consequences of their actions. The Crown submits that this inference should have led the trial judge to conclude that Mr. Hodgson intended to cause death or knew that death was likely when he applied the chokehold.

[66] We are of the view that this argument is ill founded. While it was certainly open to the trial judge to consider the common sense inference, she was not bound to draw it.

[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 (*R. v. Walle*, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 63). It is a permissive inference, not a presumptive one (*R. v. Seymour*, 1996 CanLII 201 (SCC), [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. The trial judge is presumed to know the law and need not state reasons for every inference that was or was not drawn (*R. v. G.F.*, 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 74). The absence of an express refusal on the trial judge's part to engage with the common sense inference cannot constitute an error of law in circumstances where she clearly articulated her findings in relation to the mens rea for murder.

[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?

[70] At trial, Mr. Hodgson also argued that he acted in self-defence and defence of others as contemplated by s. 34 of the Criminal Code. The trial judge found that there was an air of reality to the defence and considered each of the section's three elements and held that the Crown had failed to disprove self-defence on the lesser and included charge of manslaughter.

[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). While recognising that the trial judge did not have the benefit of this Court's reasoning in Khill, the Court of Appeal noted that previous case law had consistently measured an accused's response to a perceived threat by considering what a reasonable person would have done in like circumstances. The court quoted Khill for the proposition that "the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time" (C.A. reasons, at para. 8, quoting Khill, at para. 65).

[72] While the trial decision was released before Khill and could not have included its terminology and phrasing, we are of the view that the trial judge nevertheless understood what s. 34 required of her. She followed the framework for self-defence as set out in the Criminal Code, specifically addressed each of its three elements, correctly stated the applicable statutory principles, applied them to the facts as found, and expressed clear conclusions on each element.

[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. Ford-Perkins, 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).

[77] Given its reference to the consideration of "what a reasonable person would have done in like circumstances", it seems most likely that the Court of Appeal took issue with the trial judge's handling of s. 34(1)(c) (C.A. reasons, at para. 7). The proposition from Khill cited by the Court of Appeal about not slipping into the mind of the accused was directed towards and addressed the type of reasonableness analysis required under s. 34(1)(c). By relying on this quotation, it is likely the Court of Appeal was suggesting that the trial judge had conducted a solely subjective assessment of this element of the section, being the overall reasonableness of Mr. Hodgson's acts under s. 34(1)(c). However, even on that basis, the trial judge's treatment of this element discloses no such error.

[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. She tied each relevant factor to the facts as found in the following manner:

(a) The nature of the threat: Mr. Winsor was a large man who could likely harm someone and was not complying with requests to leave the house. He was quite intoxicated, tried to impose himself on Crystal Mullin, and pushed Mr. Burke into the wall. That said, he was likely not posing a threat to someone's life.

(b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: Mr. Winsor was not complying with requests to leave and elbowed Mr. Hodgson in the head when he tried to intervene. It did not seem to the trial judge that non-physical means were reducing the threat he posed.

(c) The person's role in the incident: Mr. Hodgson was a strong man who was requested to help remove Mr. Winsor from the home.

(d) The use or threatened use of a weapon: No weapons were involved.

(e) The size, age, gender and physical capabilities of the parties to the incident: Mr. Hodgson was 38 years old, 6 feet tall, weighed 210 pounds, and was quite strong. Mr. Winsor was 23 years old, 5 feet 8 inches tall and weighed 304 pounds. The trial judge did not see a significant difference between them.

(f) (f.1) The nature, duration and history of any relationship between the parties to the incident and any history of interaction or communication between the parties to the incident: Mr. Hodgson and Mr. Winsor had no relationship, interaction or communication before that night, although they had spoken for a long time during the party. While Mr. Hodgson was uncomfortable with the way Mr. Winsor was talking about Crystal Mullin and treating Mr. Burke, nobody suggested that there was "bad blood" between the two.

(g) The nature and proportionality of the person's response to the use or threat of force: A person in a threatening situation need not carefully assess the threat and thoughtfully determine the appropriate response. The situation was a sudden and upsetting one, in which a very heavy man was using violence and ignoring requests to leave. Ms. Ford-Perkins asked Mr. Hodgson to help. Mr. Hodgson observed Mr. Winsor physically resisting attempts to get him to leave. He was not able to pull him away and was hit in his attempt to do so. Given that his dominant hand was injured, many forms of potential control were likely unavailable. In all of the circumstances, a known "calm down" move that could be carried out from behind would have seemed proportional.

(h) Response to use or threat of force that the person knew was lawful: Not applicable.

[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. For example, she stated:

Similarly, if Mr. Hodgson's evidence were believed, there is some evidence to suggest that his actions were reasonable in the circumstances . . . .

Did the Crown prove beyond a reasonable doubt that the choke hold applied by Mr. Hodgson was not reasonable in the circumstances?

. . . A known "calm down" move that could be executed from behind would have seemed to be proportional in all of the circumstances.

. . . the Crown has not proven beyond a reasonable doubt that the choke hold was not reasonable in all of the circumstances. [Emphasis added; paras. 104, 112, 120 and 122.]

[80] Although Khill was released after the trial judge's reasons, she nevertheless engaged in the correct analysis. Even before Khill, prior case law consistently applied an objective approach to the aspects of the self-defence analysis that measured an accused's actions against those of a reasonable person in similar circumstances (see, e.g., *R. v. Rasberry*, 2017 ABCA 135, 55 Alta. L.R. (6th) 134, at para. 12; *R. v. Curran*, 2019 NBCA 27, 375 C.C.C. (3d) 551, at para. 16; *R. v. Berry*, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 73; *R. v. Grant*, 2016 ONCA 639, 351 O.A.C. 345, at para. 63; *R. v. Richter*, 2014 BCCA 244, 357 B.C.A.C. 305, at para. 37; *R. v. Constantine*, 2015 ONCA 330, 335 O.A.C. 35, at para. 30; *R. v. A.A.*, 2019 BCCA 389, at para. 33 (CanLII); *R. v. Androkovich*, 2014 ABCA 418, at para. 9 (CanLII)).

[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.

V. Disposition

[83] For the reasons given, the appeal is allowed, and the acquittal is restored.

Concurring Reasons

The following are the reasons delivered by

Rowe J. —

[84] I am persuaded that self-defence applies and, thus, I agree in the result. I write separately to clarify the Crown's right to appeal an acquittal. My colleagues deal with this at length, emphasizing how narrowly this is limited. However, there is an exception that warrants note.

[85] At paragraph 34, my colleagues write: "There are . . . 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'" (quoting *R. v. J.M.H.*, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24). In J.M.H., the Court identified four such situations, one being an "assessment of the evidence based on a wrong legal principle" (Martin and Moreau JJ.'s reasons, at para. 35).

[86] "Myths" relating to sexual assault have been characterized as errors of law (*R. v. Kruk*, 2024 SCC 7). These are not confined to the "twin myths" referred to in s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. Rather, this is an open category, further myths being identified from time to time. Thus, where the Crown characterizes an aspect of a trial judge's reasons as incorporating a "myth", this would meet the requirement in s. 676(1)(a) that the appeal be on a "question of law alone".

Appeal allowed.

Solicitors for the appellant: Lacy Naster, Toronto.

Solicitor for the respondent: Public Prosecution Service of Canada, Montréal.

Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General of Ontario, Toronto.

Solicitors for the intervener the Criminal Trial Lawyers' Association: Purser Law, Edmonton; Pringle Law, Vancouver.

[^1]: In 1900, the requirement for a party to seek leave of the Attorney General was removed (S.C. 1900, c. 46, s. 3).

[^2]: In 1909, the Crown effectively obtained "a right of appeal from an acquittal on any question of law by leave of the trial judge or of the Court of Appeal" (Morgentaler, at p. 662; S.C. 1909, c. 9, s. 2).

[^3]: While Rand J. was dissenting in Cullen, commentators have subsequently invoked this passage to explain the parameters of the Crown's limited right of appeal (see, e.g., LSJPA – 151, at para. 57; Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, at p. 23-2; Friedland, at p. 3).