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Criminal - Manslaughter. R. v. Hodgson [chokeholds]
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the history and meaning of the limited Crown appeal under CCC 676(1)(a).
Here the court, citing the earlier cases of Lemmon and Cooper (and while endorsing the trial court's treatment over that of the Court of Appeal), considers chokeholds as an 'inherently dangerous act':(2) No Error of Law in Respect of Lemmon and Cooper
[59] In Lemmon, the Alberta Court of Appeal noted that chokeholds are, by their very nature, inherently dangerous. The Court of Appeal in the present case quoted Lemmon for the proposition that[r]endering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences. . . . The difference in the outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure.
(C.A. reasons, at para. 6, quoting Lemmon, at para. 28.) [60] Respectfully, Lemmon is being read too widely if taken to establish a general legal proposition that a chokehold is always an inherently dangerous act. Lemmon was a sentencing decision in which the Alberta Court of Appeal was commenting on the gravity of offences committed under s. 246 of the Criminal Code, in which the attempt to choke, suffocate, or strangle another person is for the purpose of rendering another person insensible, unconscious or incapable of resistance: in essence, to “overcom[e] resistance to [the] commission of [an] offence” (para. 26). In Lemmon, the accused choked the victim to unconsciousness for the purpose of subduing her and sexually assaulting her. In such a case, the very purpose and intent behind the act of choking was for the accused to overcome the intended victim by rendering her unconscious in order to commit another indictable offence. That there is an inherently dangerous quality to such actions, however, does not mean that trial judges must in every case conclude that every chokehold or action that affects a person’s airways is always an inherently dangerous act.
[61] The Court of Appeal also quoted this Court’s statement in Cooper, indicating that “[s]ince breathing is essential to life, it would be reasonable [though not required] to infer the accused knew that strangulation was likely to result in death” (C.A. reasons, at para. 6 (text in brackets in original), quoting Cooper, at p. 159).
[62] In Cooper, the accused was mad at the victim, grabbed her by the throat with both hands and choked her for up to two minutes until she died. Based on this specific evidence, it was open to the trier of fact to “infer [that] the accused knew that strangulation was likely to result in death” because “breathing is essential to life” (p. 159). However, the Court also specifically stressed that “the jury was, of course, not required to make such an inference” (p. 159 (emphasis added)). Accordingly, Cooper should not be read as a blanket legal statement as to the dangerousness of all forms of chokeholds in every scenario.
[63] The dangerousness of a chokehold can vary based on factors such as its nature, force and length. For example, Dr. Milroy explained that certain recreational martial arts forms use chokeholds similar to the one Mr. Hodgson used in order to render a person unconscious or nearly unconscious. Even in that context, however, it is possible for chokeholds to have fatal consequences. In assessing the facts of each case, trial judges must be fully attuned to the potential dangerousness of the chokehold before them. The Court, however, cannot pre-emptively establish a single way of characterizing chokeholds. There is thus no “legal rule” that follows from either Lemmon or Cooper as to the general dangerousness of chokeholds. Rather, each case must be assessed on its own facts.
[64] Further, while the Crown made arguments based on the Lemmon case, the trial judge committed no error by failing to refer to it by name or to explicitly deal with this authority. According to R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 296, there is “no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts”. . R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal.
Here the court [while re-instating the trial court's treatment of the issues], contrasts the mens rea for murder versus manslaughter:(1) The Legal Test for Mens Rea
[47] The Court of Appeal’s reference to the proposition that a blocked airway is more than a “transient or trifling” injury relates only to the mens rea for manslaughter — which requires an objective foreseeability of the risk of bodily harm that is neither trivial nor transitory in the context of a dangerous act (R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at p. 961; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 44-45). Foreseeability of death is not required. The objective mens rea of manslaughter is not concerned with what the accused intended or knew; rather, “the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated” (Creighton, at p. 58). Thus, a conviction for manslaughter requires that the underlying unlawful act be one that is objectively dangerous (p. 43). The trial judge understood this framework; it is clear from her reasons that she considered the objective dangerousness of a chokehold and that in the absence of self-defence, Mr. Hodgson had the requisite objective mental fault to be found guilty of manslaughter.
[48] In contrast, “a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight” (R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 654 (emphasis added); R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 646). Murder is distinguished from manslaughter “only by the mental element with respect to the death” (Vaillancourt, at p. 654, quoted in Creighton, at p. 17, per Lamer C.J., concurring). The requisite intent for murder is “an intent to kill or an intent to cause bodily harm that the offender knows is likely to cause death and is reckless as to whether or not death ensues” (R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 3).
[49] A conviction for murder requires subjective intent because it is an offence that “carries with it the most severe stigma and punishment of any crime in our society” (Martineau, at p. 645). The law requires subjective foresight of death because the criminal liability for murder is of the highest kind and cannot be justified except where the actor possesses a culpable mental state in respect of that result (Martineau, at p. 645, citing R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833). Thus, the harsh stigma and punishment associated with murder is reserved for “those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death” (Martineau, at p. 646).
[50] Given this rationale, any slippage from the high bar of subjective intent required for murder must be avoided. The accused’s actions are not to be measured against the objective standard of a reasonable person in the same circumstances. The mens rea for murder requires more than an intention to cause bodily harm that the accused knew was dangerous; an accused must have intended to cause bodily harm that they knew was likely to cause death. Thus, the proposition that a chokehold is always an inherently dangerous act runs the risk of inappropriately injecting an objective element into the mens rea analysis for murder. This is because the subjective foresight required for murder is focused solely on what the accused intended, and the analysis cannot consider what the accused ought to have known about the inherent dangerousness of a chokehold.
[51] Thus, when considering the mens rea for murder, a trial judge should not be (and indeed 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.
[52] Consequently, accepting the proposition that a chokehold is always an inherently dangerous act in every case would inappropriately import an objective element into the analysis of the mens rea of murder. Accepting this proposition would also usurp the role of the trier of fact, who must assess the dangerousness of a chokehold based on the facts of the particular case.
[53] In light of the fact that the trial judge in this case found that Mr. Hodgson would have been guilty of manslaughter if not for the act having been committed in self-defence, or in defence of others, it is clear that she properly considered that a chokehold can be dangerous. Indeed, the evidence demonstrates that, as a method of restraint, chokeholds can certainly carry with them a degree of danger. As Dr. Milroy explained, strangulation prevents breathing and deprives the brain of blood and, thereby, of oxygen. Thus, unlike a headlock — which merely immobilizes someone by limiting their movement — a neck compression chokehold can rapidly lead to unconsciousness. The tragic consequences that Mr. Winsor suffered, including serious injuries in addition to a loss of consciousness and death, speak to how dangerous chokeholds can be.
[54] However, in respect of the subjective mens rea for murder, the trial judge accepted the testimony of Mr. Hodgson as to his state of mind when he used the chokehold on Mr. Winsor. Mr. Hodgson testified that the chokehold was meant to “restrain [Mr. Winsor] and try and throw him to the ground” and that he maintained the chokehold until Mr. Winsor “stopped struggling” because he was afraid of Mr. Winsor (transcript, reproduced in A.R., part V, at pp. 423-24). The trial judge accepted that, at the time, Mr. Hodgson did not think the chokehold was inherently dangerous and that he also did not have time, in the midst of the altercation, to think about its dangerousness. His personal experience included viewing videos in the media of law enforcement using chokeholds to induce unconsciousness; he witnessed such a technique used effectively when he was a bouncer in 1998 and had used it himself in 2016. Although the person he had used it on in 2016 was rendered unconscious, that person did not die and instead “got up and started fighting immediately after” (p. 446). While Mr. Hodgson acknowledged seeing news stories of people dying as a result of being placed in chokeholds by police, he testified that he could not “say for sure” whether he knew that chokeholds were dangerous at the time of the party (p. 462).
[55] The trial judge also considered other available evidence that could realistically bear on Mr. Hodgson’s intent, including the circumstances in which Mr. Hodgson became involved in the altercation, the short duration of the chokehold, the evidence of the other guests who were surprised that Mr. Winsor did not recover quickly after being put in the chokehold, and the experts’ opinions on how long it might take for a chokehold to lead to unconsciousness and death. She found that this party “suddenly took an unpleasant turn”; Mr. Hodgson was asked to intervene and “he did what he could” to control Mr. Winsor (para. 94). The trial judge also accepted that Mr. Hodgson’s injured right hand meant “many [other] forms of potential control were likely unavailable” (para. 120). When Mr. Hodgson initially tried to pull Mr. Winsor away from the confrontation, he elbowed Mr. Hodgson in the head, and the trial judge accepted that it did not appear that non-physical means were reducing the threat Mr. Winsor posed at the time. Mr. Hodgson only put Mr. Winsor in a chokehold for a “fairly short period of time”, and everyone at the party was surprised that Mr. Winsor was not responsive afterwards (para. 94).
[56] The trial judge characterized the chokehold as a “known ‘calm down’ move” that would have seemed proportional in all of the circumstances (para. 120). In this case, it was open to the trial judge to make this factual finding. Mr. Burke testified that he had seen the chokehold manoeuvre used on others and believed the chokehold that Mr. Hodgson used was just a regular “calm down” method. One of the experts also testified that the same type of chokehold is regularly used in martial arts.
[57] The trial judge reviewed all this evidence in detail and ultimately concluded that she had a reasonable doubt as to whether Mr. Hodgson intended to kill Mr. Winsor or knew that the chokehold was likely to do so. She found there “was no evidence that satisfie[d] [her] beyond a reasonable doubt that Mr. Hodgson intended to cause death or knew that what he did would have that result” (para. 97 (emphasis added)). Her conclusion that there was no intent to murder was firmly grounded in the evidence pertaining to Mr. Hodgson’s subjective state of mind.
[58] With respect, the Court of Appeal seems to have simply disagreed with the trial judge’s assessment that the chokehold used in these circumstances was intended to be a regular “calm down” method. Such a disagreement as to the characterization of a chokehold in these particular circumstances is not an error of law that justifies overturning an acquittal. . R. v. Salifu
In R. v. Salifu (Ont CA, 2023) the Court of Appeal considers 'provocation' [under CCC 232] (which - if operative - can reduce murder to manslaughter), and the status of s.7 Charter challenges to recent CCC amendments:[1] Section 232(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. Before its amendment in 2015, s. 232(2) defined provocation as “[a] wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool”. In 2015, when amended, the words “[a] wrongful act or an insult” were replaced with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment”.
[2] This arguably narrowed the qualifying conditions for the partial defence of provocation, thereby circumscribing the range of circumstances in which the defence is available.
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Trilogy of Lower Court Decisions
[10] Before explaining why I decline to answer the constitutional question, I acknowledge that three lower court decisions have already said that Parliament’s decision to replace “[a] wrongful act or an insult” with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment” violates s. 7 of the Charter and is of no force and effect: R. v. Simard, 2019 BCSC 531, 375 C.C.C. (3d) 107, leave to appeal dismissed [2019] S.C.C.A. No 201 (Ruling on Constitutionality); Fredette c. R., 2019 QCCS 4116; and R. v. Mujber, [2020] O.J. No. 6126 (S.C.). This question has yet to be addressed by an appellate court.
[11] In the event this court elected to go down that path, the Crown forcefully argued that all of these cases were wrongly decided. It takes the position that each decision is fundamentally flawed in the way the presiding justices too narrowly defined the legislative objective without anchoring it in the impugned text, which in turn led to a misplaced finding of overbreadth. Again, while in the particular circumstances of this case I do not see it as appropriate to weigh in on this question, it is one that will have to be answered in a future case which properly raises it.
[12] It is also worth noting for context that, in the Simard case, the Crown sought leave to appeal directly to the Supreme Court pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26, which was denied. This, however, does not mean that the Supreme Court has endorsed the finding that the amended s. 232 is not Charter compliant. There are many possible reasons, unrelated to the merits of the lower court decision, for denying leave. In Mr. Simard’s case, while he was permitted at trial to raise the defence of provocation based on the pre-amendment definition, he was ultimately convicted of second degree murder and sentenced to life in prison. As the Crown was successful at trial, the Supreme Court’s decision to deny the Crown leave is unsurprising.
[13] The accused in each of the other lower court cases were similarly convicted of either first or second degree murder. For this reason, the Crown has not yet had an opportunity to properly challenge the pre-trial Charter rulings, which explains why those lower court decisions have yet to be addressed head on. Although this would seem to support the argument that this court should now, I would still not do so. As mentioned, the constitutional question is being raised for the first time on appeal and there is no air of reality to provocation in this case. . R. v. Fournier
In R. v. Fournier (Ont CA, 2023) the Court of Appeal considered the causation element of manslaughter, both factual and legal:[9] The second ground of appeal focuses on the element of legal causation for manslaughter. The appellant asserts that the trial judge erred in rejecting the argument that Mr. Sidhu’s voluntary consumption of the drug interrupted the chain of legal causation. The appellant contends that, while the trial judge identified the correct legal principles for determining factual and legal causation, in concluding that causation was made out, she over-emphasized the temporal connection between the trafficking and the consumption of the drug, and she treated the foreseeability of Mr. Sidhu’s death as dispositive.
[10] Again, we disagree. The trial judge was satisfied beyond a reasonable doubt that the trafficking was the factual, or “but for”, cause of Mr. Sidhu’s death, who, like other inmates, showed signs of overdose shortly after he received the drugs from the appellant. As for legal causation, the trial judge noted that determining whether the appellant should be held criminally responsible for these consequences engaged questions of his moral responsibility. She cited the decision of the Manitoba Court of Appeal in R. v. Haas, 2016 MBCA 42, leave to appeal refused, [2016] S.C.C.A. No. 306, which in turn relied on the Supreme Court’s decision in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30. In Maybin Karakatsanis J. identified the ultimate question as whether “the dangerous, unlawful acts of the accused [were] a significant contributing cause of the victim's death”: at para. 28. She stated at para. 29:Depending on the circumstances, assessments of foreseeability or independence may be more or less helpful in determining whether an accused's unlawful acts were still a significant contributing cause at the time of death. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent. [Emphasis in original.]
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