Court headnote

R. v. Hodgson
Collection
Supreme Court Judgments
Date
2024-07-12
Neutral citation
2024 SCC 25
Case number
40498
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Nunavut
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Hodgson, 2024 SCC 25
Appeal Heard and Judgment Rendered: February 15, 2024 Reasons for Judgment: July 12, 2024 Docket: 40498
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.
Daniel Hodgson Appellant
v.
His Majesty The King Respondent
and
Attorney General of Ontario and
Criminal Trial Lawyers’ Association Interveners
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
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] 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, [1976] 1 S.C.R. 616; Cullen v. The King, [1949] S.C.R. 658; Wexler v. The King, [1939] S.C.R. 350; Rose v. The Queen, [1959] S.C.R. 441; R. v. Podetz (1981), 26 A.R. 307; R. v. W.F.M. (1995), 169 A.R. 222; R. v. Orlin (1945), 85 C.C.C. 150; 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] 2 S.C.R. 629; McElrath v. Georgia, 601 U.S. 87 (2024); R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Potvin, [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] 2 S.C.R. 345; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Odeon Morton Theatres Ltd., [1974] 3 W.W.R. 304; R. v. Chatwin Motors Ltd., [1980] 2 S.C.R. 64; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Seymour, [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 (online: https://www.gov.nl.ca/jps/files/public-prosecutions-guide-book.pdf; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC25_1_eng.pdf).
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.
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
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] The restricted nature of the Crown’s ability to appeal from an acquittal has deep roots in the principles that underlie our criminal justice system and was [translation] “[d]eveloped in a particular historical context characterized by the reluctance of Anglo-Canadian law to allow for [it]” (LSJPA – 151, 2015 QCCA 35, at para. 57 (CanLII), per Kasirer J.A., as he then was). Indeed, “[t]here is a historical aversion to Crown appeals that grounds the differing limitations placed on appellate access as between the Crown and a convicted person” (R. v. Budai, 2001 BCCA 349, 153 B.C.A.C. 98, at para. 123, per Ryan J.A.).
[23] Historically, the Crown’s ability to appeal from an acquittal in Canada has been limited to questions of law alone. Although the provisions that set out the Crown’s right of appeal have evolved over the years, this constraint has remained consistent. For example, when Canada’s Criminal Code was enacted in 1892, “an appeal by the Crown against an acquittal was possible only when a question of law had been reserved for the opinion of the Court of Appeal” or through a leave process which allowed the case to proceed as though the question had been reserved (Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 662; see The Criminal Code, 1892, S.C. 1892, c. 29, ss. 743 and 744; see also B. L. Berger, “Criminal Appeals as Jury Control: An Anglo‑Canadian Historical Perspective on the Rise of Criminal Appeals” (2006), 10 Can. Crim. L.R. 1, at p. 36). There were further amendments in 1900[1] and 1909[2], and the Crown’s right to appeal an acquittal on a question of law was repealed altogether in 1923 (S.C. 1923, c. 41, s. 9). It is not clear whether this removal was intentional, but the right was later “restored” in 1930 (Morgentaler, at pp. 662‑63; see the explanatory note accompanying s. 38 of House of Commons Bill 138, An Act to amend the Criminal Code, 4th Sess., 16th Parl., 1930 (first reading, May 14, 1930)). The amended text of the relevant provision, s. 1013(4) of the Criminal Code, R.S.C. 1927, c. 36, granted the Attorney General the right to appeal an acquittal on an indictable offence “on any ground of appeal which involves a question of law alone” (S.C. 1930, c. 11, s. 28). Unlike previous iterations of the Crown’s ability to appeal from an acquittal, this amendment did not include a requirement of leave by the trial judge or the Court of Appeal (see the discussion of the 1900 and 1909 amendments in Morgentaler, at p. 662).
[24] This latter amendment — which also reflects the present law — has been described as an “extraordinary remedy” (Department of Justice and Public Safety, Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, 2022 (online), at p. 23-2). 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” (Cullen v. The King, [1949] S.C.R. 658, at pp. 665-66, per Rand J., dissenting), having “created an exception to the general rule that no person should be tried twice on the same charge” (Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, at p. 23-2). Commentators have referred to it as “drastic”, “exceptional”, “special”, “unusual” and “limited” in an “extrem[e]” or “narrow” manner (see, e.g., Wexler v. The King, [1939] S.C.R. 350, at p. 358; Rose v. The Queen, [1959] S.C.R. 441, at p. 442; R. v. Podetz (1981), 26 A.R. 307 (C.A.), at para. 10; R. v. W.F.M. (1995), 169 A.R. 222 (C.A.), at para. 5; M. L. Friedland, Double Jeopardy (1969), at p. 295; R. v. Orlin (1945), 85 C.C.C. 150 (Que. K.B. (App. Side)), at p. 153; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33; R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 35).
[25] Many other countries also restrict Crown appeals from acquittals. Indeed, the Crown’s right of appeal from an acquittal is broader in Canada than in most other common law jurisdictions (see R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 46, and R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 13, both citing R. v. Evans, [1993] 2 S.C.R. 629, at pp. 645-46). The United Kingdom imposes significant limitations on the scope of Crown appeals (see Criminal Justice Act 2003 (U.K.), 2003, c. 44, ss. 57(4), 63, 67, 76(3), 76(4), 77, 78 and 79; H. Stewart, “Procedural Rights and Factual Accuracy” (2020), 26 Legal Theory 156, at pp. 170-71), and many foreign jurisdictions do not allow appeals from acquittals at all (see S. Coughlan, Criminal Procedure (4th ed. 2020), at p. 587).
(2) Rationales for the Crown’s Limited Right of Appeal
[26] The absence of a “principle of parity of appellate access in the criminal process” as between the Crown and the accused is explained on the basis of the different policy considerations underlying the Crown’s right of appeal against acquittals (Biniaris, at para. 33).
[27] Avoiding wrongful convictions is one rationale that explains why the scope of the accused’s right of appeal is wider than the Crown’s. As explained in Biniaris, “[e]rror-free trials are desirable as such, but even more so as a safeguard against wrongful convictions” (para. 26).
[28] In the case of jury trials, appellate courts’ respect for a jury acquittal is another reason for limiting the Crown’s right of appeal to questions of law alone (T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at para. 72).
[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)). As explained in Cullen, “[a]t the foundation of criminal law lies the cardinal principle that no [individual] shall be placed in jeopardy twice for the same matter . . . . It is the supreme invasion of the rights of an individual to subject [that individual] by the physical power of the community to a test which may mean the loss of [their] liberty or [their] life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy” (p. 668).[3]
[31] Thus, 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 Budai, at para. 125, quoting R. v. Potvin, [1993] 2 S.C.R. 880, at p. 890, per McLachlin J., concurring in the result). Allowing the Crown’s restricted right of appeal to expand beyond its scope would undermine the provision’s protection against wrongful convictions and double jeopardy.
(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] Consequently, the scope of the Crown’s right of appeal of an acquittal depends on what qualifies as a legal question. This assessment will generally turn on the character of the alleged error, rather than on its severity (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17). 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 t

Court headnote

R. v. Hodgson Collection Supreme Court Judgments Date 2024-07-12 Neutral citation 2024 SCC 25 Case number 40498 Judges Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary On appeal from Nunavut Subjects Criminal law Notes Case in Brief SCC Case Information Decision Content SUPREME COURT OF CANADA Citation: R. v. Hodgson, 2024 SCC 25 Appeal Heard and Judgment Rendered: February 15, 2024 Reasons for Judgment: July 12, 2024 Docket: 40498 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. Daniel Hodgson Appellant v. His Majesty The King Respondent and Attorney General of Ontario and Criminal Trial Lawyers’ Association Interveners 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 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] 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, [1976] 1 S.C.R. 616; Cullen v. The King, [1949] S.C.R. 658; Wexler v. The King, [1939] S.C.R. 350; Rose v. The Queen, [1959] S.C.R. 441; R. v. Podetz (1981), 26 A.R. 307; R. v. W.F.M. (1995), 169 A.R. 222; R. v. Orlin (1945), 85 C.C.C. 150; 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] 2 S.C.R. 629; McElrath v. Georgia, 601 U.S. 87 (2024); R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Potvin, [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] 2 S.C.R. 345; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Odeon Morton Theatres Ltd., [1974] 3 W.W.R. 304; R. v. Chatwin Motors Ltd., [1980] 2 S.C.R. 64; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Seymour, [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 (online: https://www.gov.nl.ca/jps/files/public-prosecutions-guide-book.pdf; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC25_1_eng.pdf). 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. 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 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] The restricted nature of the Crown’s ability to appeal from an acquittal has deep roots in the principles that underlie our criminal justice system and was [translation] “[d]eveloped in a particular historical context characterized by the reluctance of Anglo-Canadian law to allow for [it]” (LSJPA – 151, 2015 QCCA 35, at para. 57 (CanLII), per Kasirer J.A., as he then was). Indeed, “[t]here is a historical aversion to Crown appeals that grounds the differing limitations placed on appellate access as between the Crown and a convicted person” (R. v. Budai, 2001 BCCA 349, 153 B.C.A.C. 98, at para. 123, per Ryan J.A.). [23] Historically, the Crown’s ability to appeal from an acquittal in Canada has been limited to questions of law alone. Although the provisions that set out the Crown’s right of appeal have evolved over the years, this constraint has remained consistent. For example, when Canada’s Criminal Code was enacted in 1892, “an appeal by the Crown against an acquittal was possible only when a question of law had been reserved for the opinion of the Court of Appeal” or through a leave process which allowed the case to proceed as though the question had been reserved (Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 662; see The Criminal Code, 1892, S.C. 1892, c. 29, ss. 743 and 744; see also B. L. Berger, “Criminal Appeals as Jury Control: An Anglo‑Canadian Historical Perspective on the Rise of Criminal Appeals” (2006), 10 Can. Crim. L.R. 1, at p. 36). There were further amendments in 1900[1] and 1909[2], and the Crown’s right to appeal an acquittal on a question of law was repealed altogether in 1923 (S.C. 1923, c. 41, s. 9). It is not clear whether this removal was intentional, but the right was later “restored” in 1930 (Morgentaler, at pp. 662‑63; see the explanatory note accompanying s. 38 of House of Commons Bill 138, An Act to amend the Criminal Code, 4th Sess., 16th Parl., 1930 (first reading, May 14, 1930)). The amended text of the relevant provision, s. 1013(4) of the Criminal Code, R.S.C. 1927, c. 36, granted the Attorney General the right to appeal an acquittal on an indictable offence “on any ground of appeal which involves a question of law alone” (S.C. 1930, c. 11, s. 28). Unlike previous iterations of the Crown’s ability to appeal from an acquittal, this amendment did not include a requirement of leave by the trial judge or the Court of Appeal (see the discussion of the 1900 and 1909 amendments in Morgentaler, at p. 662). [24] This latter amendment — which also reflects the present law — has been described as an “extraordinary remedy” (Department of Justice and Public Safety, Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, 2022 (online), at p. 23-2). 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” (Cullen v. The King, [1949] S.C.R. 658, at pp. 665-66, per Rand J., dissenting), having “created an exception to the general rule that no person should be tried twice on the same charge” (Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, at p. 23-2). Commentators have referred to it as “drastic”, “exceptional”, “special”, “unusual” and “limited” in an “extrem[e]” or “narrow” manner (see, e.g., Wexler v. The King, [1939] S.C.R. 350, at p. 358; Rose v. The Queen, [1959] S.C.R. 441, at p. 442; R. v. Podetz (1981), 26 A.R. 307 (C.A.), at para. 10; R. v. W.F.M. (1995), 169 A.R. 222 (C.A.), at para. 5; M. L. Friedland, Double Jeopardy (1969), at p. 295; R. v. Orlin (1945), 85 C.C.C. 150 (Que. K.B. (App. Side)), at p. 153; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33; R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 35). [25] Many other countries also restrict Crown appeals from acquittals. Indeed, the Crown’s right of appeal from an acquittal is broader in Canada than in most other common law jurisdictions (see R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 46, and R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 13, both citing R. v. Evans, [1993] 2 S.C.R. 629, at pp. 645-46). The United Kingdom imposes significant limitations on the scope of Crown appeals (see Criminal Justice Act 2003 (U.K.), 2003, c. 44, ss. 57(4), 63, 67, 76(3), 76(4), 77, 78 and 79; H. Stewart, “Procedural Rights and Factual Accuracy” (2020), 26 Legal Theory 156, at pp. 170-71), and many foreign jurisdictions do not allow appeals from acquittals at all (see S. Coughlan, Criminal Procedure (4th ed. 2020), at p. 587). (2) Rationales for the Crown’s Limited Right of Appeal [26] The absence of a “principle of parity of appellate access in the criminal process” as between the Crown and the accused is explained on the basis of the different policy considerations underlying the Crown’s right of appeal against acquittals (Biniaris, at para. 33). [27] Avoiding wrongful convictions is one rationale that explains why the scope of the accused’s right of appeal is wider than the Crown’s. As explained in Biniaris, “[e]rror-free trials are desirable as such, but even more so as a safeguard against wrongful convictions” (para. 26). [28] In the case of jury trials, appellate courts’ respect for a jury acquittal is another reason for limiting the Crown’s right of appeal to questions of law alone (T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at para. 72). [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)). As explained in Cullen, “[a]t the foundation of criminal law lies the cardinal principle that no [individual] shall be placed in jeopardy twice for the same matter . . . . It is the supreme invasion of the rights of an individual to subject [that individual] by the physical power of the community to a test which may mean the loss of [their] liberty or [their] life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy” (p. 668).[3] [31] Thus, 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 Budai, at para. 125, quoting R. v. Potvin, [1993] 2 S.C.R. 880, at p. 890, per McLachlin J., concurring in the result). Allowing the Crown’s restricted right of appeal to expand beyond its scope would undermine the provision’s protection against wrongful convictions and double jeopardy. (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] Consequently, the scope of the Crown’s right of appeal of an acquittal depends on what qualifies as a legal question. This assessment will generally turn on the character of the alleged error, rather than on its severity (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17). 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 t

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