Appeal Watch: What is ‘Reasonable Self-Defence’?

Canada’s self-defence laws, which were recently reformed to provide greater clarity for that defence, have stirred up new uncertainty. In R v Hodgson, 2022 NUCA 9, the Court of Appeal of Nunavut (“NUCA”) overturned an acquittal of a second degree murder charge stemming from an act of self-defence based on the multiple perceived legal errors made by the trial judge. The decision calls into question whether so-called “regular calm down methods” like chokeholds are acceptable acts of self-defence given the likelihood of death that they give rise to. The NUCA’s decision also raises questions about when a modified-objective inquiry into the reasonableness of an act of self-defence unacceptably slips into a subjective inquiry.

On May 4, 2023, the Supreme Court of Canada (“SCC”) granted leave to appeal the judgement of the NUCA, and will hopefully provide greater certainty to these questions. The appeal hearing is currently scheduled for February 15, 2024, at 9:30am.

Facts

The facts of this case are straightforward. A physical altercation began at a house party in Iqaluit, Nunavut between Bradley Winsor and the homeowner. Mr. Winsor was asked to leave but refused. Another partygoer woke up the accused, Daniel Hodgson, who was in bed elsewhere in the house, and asked him to help remove Mr. Winsor from the premises. In doing so, Mr. Hodgson applied a one-arm chokehold on Mr. Winsor, who died shortly thereafter. Mr. Hodgson claimed that the chokehold was intended to restrain Winsor, because Mr. Hodgson feared that he might strike another guest (Hodgson, paras 2-3).

Procedural History

The trial judge found that the accused lacked the requisite intent for second-degree murder, that there was an ‘air of reality’ to self-defence, and that the Crown failed to prove Hodgson’s actions were unreasonable in all the circumstances. In determining causation and intent, the trial judge accepted that compression of the neck was the immediate cause of death and that Mr. Winsor’s hyoid bone was broken, but also considered the role that Winsor’s large size, cocaine consumption, and enlarged heart played in relation to the cause of death (Hodgson, para 4). The trial judge also found Mr. Hodgson not guilty of the lesser offence of manslaughter because the Crown failed to disprove the self-defence claim beyond a reasonable doubt (Hodgson, para 1).

On appeal, the NUCA unanimously identified several legal errors made by the trial judge. First, assessing the reasonableness of the act of self-defence, they found that the trial judge erred by accepting Hodgson’s claim that a chokehold was a “regular ‘calm down’ method” without assessing its potential danger or the possible recklessness of his action. Namely, the trial judge failed to adequately address the inherent dangers of a chokehold (Hodgson, para 5). Second, the trial judge erred by not inferring the mens rea of intent for murder from the act of a chokehold (Hodgson, para 6). Lastly, the trial judge, by taking an entirely subjective approach to evaluating Mr. Hodgson’s response to the perceived threat, failed to consider what a reasonable person would have done in similar circumstances, as required by the defence of self-defence (Hodgson, para 7; also see Criminal Code, section 34 and R v Khill, 2021 SCC 37 [“Khill”]).

Overall, the NUCA found that the trial judge’s legal errors had a material bearing on Hodgson’s acquittal (Hodgson, para 9). As such, the appeal was allowed, the acquittal set aside, and a new trial was ordered (Hodgson, para 10). Mr. Hodgson appealed to the SCC.

Analysis

There are three issues on appeal at the SCC:

(1)   Did the NUCA exceed its jurisdiction in concluding that the trial judge’s failure to infer intent for murder was a reviewable legal error?

(2)   Did the NUCA err in concluding that the trial judge was required to infer the intent for murder?

(3)   Did the NUCA err in concluding that the trial judge erroneously approached the issue of the reasonableness of the appellant’s response under s. 34(1)(c) of the Criminal Code from a purely subjective perspective?

The NUCA Did Not Exceed Its Jurisdiction

Where an accused is acquitted, only errors of law are reviewable.

Section 676(1)(a) of the Criminal Code limits the Crown’s right to appeal an acquittal to grounds that raise questions of law. In R v J.M.H., 2011 SCC 45, (“J.M.H.”) the SCC recognized four scenarios where a trial judge’s handling of evidence constitutes an error of law: (1) a finding of fact is made for which there is no evidence; (2) findings of fact and undisputed facts are not given legal effect; (3) evidence is assessed based on the wrong legal principles; and (4) a failure to consider all of the evidence in relation to an accused’s guilt or innocence (paras 25-32).

The interpretation and application of a legal standard to the facts of a case are questions of law that fall within the scope of the second and third scenarios (R v Shepherd, 2009 SCC 35, para 20). The NUCA’s brief decision focused on the proper interpretation and application of the mens rea for murder and the reasonableness of the chokehold as an act of self-defence. The correct standard for the elements of a criminal offence, such as the intent for murder, is clearly a question of law that was within the NUCA’s appellate jurisdiction.

Therefore, I believe the first issue on appeal strongly favours the Crown.

Not All Chokeholds Should Infer the Intent for Murder

Turning to whether the trial judge was required to infer the intent for murder, the NUCA’s gripe is with the perceived objective dangerousness of the chokehold and the trial judge’s failure to address the Crown’s arguments in support of that proposition because the evidence “suggested as much in this case” (Hodgson, paras 5-6). I think this misses the mark.

On the one hand, the NUCA can intervene on errors owing to a trial judge’s failure to consider evidence relating to the inherent dangerousness of a chokehold because this factored into the mens rea for murder. The failure to consider all the evidence in relation to an accused’s guilt or innocence falls under the fourth J.M.H. category for a Crown appeal of an acquittal on an error of law.

But it is not clear that the trial judge actually overlooked the dangerousness of the chokehold. In her reasons, the trial judge held that “[o]n all of the evidence, I cannot find such intent” and considered the evidence relevant to that determination (Appellant Factum, para 21). Although the trial judge did not address the Crown’s arguments about the dangerousness of a chokehold, trial judges are not obligated to address every piece of evidence in their reasons (R v Percy, 2020 NSCA 11, para 2). It does not logically follow that the trial judge failed to meaningfully consider the dangerousness of the chokehold simply because she did not touch upon it further.

What’s more, the trial judge appeared to accept that a reasonable person would foresee the risk of serious bodily harm or death arising from the use of a chokehold. That is why Hodgson would have been guilty of manslaughter had the Crown disproven his self-defence claim beyond a reasonable doubt (Hodgson, para 1).

The trial judge also accepted Hodgson’s account that he was trying to stop Mr. Winsor from continuing to be physically aggressive towards others, rather than trying to strangle or render him unconscious (Hodgson, paras 2-3). It is therefore not clear that the trial judge failed to consider all the evidence in determining that Hodgson lacked the intent for murder.

Further, it is not clear that the trial judge’s assessment of the evidence and the dangerousness of the chokehold was flawed. The NUCA’s comments that “[b]locking someone’s airway is always an act which is more than merely transient or trifling in nature” might be reasonably understood as implying that the intent for murder necessarily attaches to the act of a chokehold because it is an inherently dangerous act, based on the holdings cited in R v Lemmon, 2012 ABCA 103, and R v Cooper, [1993] 1 SCR 146 (see Hodgson, para 6). This would oblige the trial judge to conclude that Hodgson knew that using a chokehold would cause bodily harm that was likely to cause death and that he was reckless to that outcome. In essence, what is now a permissible inference – that an accused knows that strangulation is likely to result in death – would become a required inference.

I believe requiring this inference is inappropriate because it artificially elevates the danger of strangulation by improperly importing an objective element into the assessment of mens rea for murder. Chokeholds are not always dangerous acts; the degree of dangerousness arising from a choking incident is fact-specific. For example, many people use them in martial arts practice (i.e., judo) or sports-entertainment (i.e., professional wrestling). One can imagine a scenario where a freak accident occurs in a sports setting where requiring an inference of intent for murder would be unlikely or absurd given the circumstances. The trial judge’s perceived failure to infer intent cannot amount to an error of law unless the law required her to draw that inference. As it stands, the law does not require this inference, as the NUCA acknowledged in its reasons (Hodgson, para 6).

That said, the SCC might view chokeholds as being objectively dangerous in some scenarios, but not others. Based on the current law, however, the SCC will likely side with the appellants on this issue, unless they opt to majorly reform the law around specific factual settings.  

Clarity Is Needed About an Accused’s Role in the Self-Defence Inquiry

Self-defence is conceptually simple. Criminal law generally prohibits unconsented applications of force on others, but recognizes that people are entitled to apply force to others in an act of self-preservation against apprehended harm. The idea is that you should not be punished for acting reasonably to defend against an unlawful aggressor because you are not morally blameworthy. For a breakdown of the law of self-defence and the SCC’s related decision in Khill, see Jennifer’s article.

Reasonableness is at the heart of self-defence and is also its main stumbling block. In order for otherwise unlawful use of force to be justified as self-defence, the amount of force used must be reasonable in the circumstances (Criminal Code, section 34(1)(c); also see Khill, para 62). The trial judge’s role is to “consider a wide range of factors to determine what a reasonable person would have done in a comparable situation” (Khill, para 2). Section 34(2) of the Criminal Code provides a non-exhaustive list of factors that must be considered in determining whether an accused’s act was reasonable in the circumstances (for discussion, see Khill, paras 64-70).

The law of self-defence therefore applies a modified-objective standard that accounts for what a reasonable person would have done in light of “the relevant circumstances of the person, the other parties and the act” (Criminal Code, section 34(2); Khill, para 64). This inquiry is “primarily concerned with the reasonableness of the accused’s actions, not their mental state” (Khill, para 66).

While the NUCA conclusion that the trial judge made a subjective assessment of self-defence was not supported by reference to any passage from the trial judge’s reasons, it was likely based on the trial judge’s characterization of the accused’s actions as “proportional in all the circumstances” (see Appellant’s Factum, para 32; Respondent’s Factum, paras 35-36).

The argument that the trial judge imported a purely subjective analysis into her assessment of reasonableness is unconvincing. The trial judge considered the factors outlined in s 34(2) in light of the expert evidence and did so in relation to what was reasonable in all the circumstances (see Appellant’s Factum, para 32). The nature and proportionality of a person’s response is one of those relevant factors (Criminal Code, section 34(2)(g)). The trial judge’s reasons in this regard focused on the accused’s actions and the circumstances, not his mental state. She therefore did precisely what the Criminal Code and the relevant case law required of her.

The NUCA’s decision seems to be based on its dissatisfaction with the outcome of the trial judge’s assessment of the facts. They also seem to mischaracterize the trial judge’s consideration of the circumstances in which the accused found himself—which contextualise the accused’s actions in the modified-objective inquiry—with a subjective inquiry into the mind of the accused.

In my opinion, there was no reviewable error and the trial judge’s finding that ‘an air of reality’ existed to Hodgson’s claim of self-defence deserved deference. It is possible, however, that the SCC may decide differently based on its perceptions about how far the trial judge’s inquiry went in assessing the factors required by s. 34(2). Which contextual factors the SCC considers most relevant will likely provide the driving force of its decision on this issue.

Conclusion

The NUCA’s decision stands out as incomplete, especially given its brevity. In fairness, the unavailability of the trial judge’s full reasons limit my ability to analyse the judgements in full. However, reading the Factums on Appeal at the SCC and seeing some of the trial judge’s reasons quoted by both parties, I have difficulty agreeing with the NUCA. The perceived errors of law are not well-identified, and little explanation is offered beyond sweeping generalisations.

It will be interesting to see whether the SCC clarifies the role of the accused in self-defence. At times, the differences between the modified-objective and subjective reasonableness inquiries can feel more theoretical than real. As the SCC stated in Khill, the former focuses on an accused’s actions, while the latter focuses on an accused’s beliefs; however, the two may become blurred the deeper one inquires into an accused’s role within the incident. Where the line in the sand is drawn may become more clearly demarcated by the SCC in its highly anticipated upcoming decision.