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Criminal - Self-Defence. R. v. Hodgson
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 extensively and usefully considers 'self-defence' [under CCC s.34]:C. Did the Trial Judge Err in Law in Relation to Self-Defence?
[70] At trial, Mr. Hodgson also argued that he acted in self-defence and defence of others as contemplated by s. 34 of the Criminal Code. The trial judge found that there was an air of reality to the defence and considered each of the section’s three elements and held that the Crown had failed to disprove self-defence on the lesser and included charge of manslaughter.
[71] The Court of Appeal concluded that the trial judge erred in law because she “improperly took a solely subjective approach to assessing [Mr. Hodgson’s] response to the perceived threat posed by Mr. Winsor” (para. 8). While recognising that the trial judge did not have the benefit of this Court’s reasoning in Khill, the Court of Appeal noted that previous case law had consistently measured an accused’s response to a perceived threat by considering what a reasonable person would have done in like circumstances. The court quoted Khill for the proposition that “the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time” (C.A. reasons, at para. 8, quoting Khill, at para. 65).
[72] While the trial decision was released before Khill and could not have included its terminology and phrasing, we are of the view that the trial judge nevertheless understood what s. 34 required of her. She followed the framework for self-defence as set out in the Criminal Code, specifically addressed each of its three elements, correctly stated the applicable statutory principles, applied them to the facts as found, and expressed clear conclusions on each element.
[73] In some respects, it is difficult to understand what precise legal error motivated the Court of Appeal to order a new trial on this ground. While the critique that a solely subjective approach was taken is clear, it is less clear to which element of the s. 34 analysis this criticism attaches. The Court of Appeal’s holding that the trial judge did not assess Mr. Hodgson’s actions in “considering what a reasonable person would have done in like circumstances” suggests that it was of the view the trial judge erred in her analysis of s. 34(1)(c) (para. 7); however, the phrase the Court of Appeal chose to describe the perceived error — “[Mr. Hodgson’s] response to the perceived threat” (para. 8) — can encompass one, some, or all of the statutory elements of s. 34. The Court of Appeal’s failure to clearly identify which element(s) of the self-defence inquiry under s. 34(1)(a) to (c) was engaged is problematic as each has its own considerations and methods of evaluation.
[74] First, under s. 34(1)(a), the accused must have subjectively believed that force or a threat thereof was being used against their person or against that of another (Khill, at para. 52). However, the accused’s belief must also be held on reasonable grounds. In order to assess the reasonableness of the accused’s belief, the trier of fact will apply a modified objective standard that takes into account what a reasonable person with the relevant characteristics and experiences of the accused would perceive (Khill, at para. 57). That the accused’s actual belief must be held “on reasonable grounds” imports an objective component to ensure conformity with community norms and values when weighing the moral blameworthiness of the accused’s actions (Khill, at para. 53). The trial judge applied this modified objective standard and held, based on the evidence she accepted from Crystal Mullin, Mr. Hodgson, Mr. Burke and Ms. Ford-Perkins, that “Mr. Hodgson believed on reasonable grounds that there was a threat of force being made by Mr. Winsor against the others. When Mr. Hodgson went to deal with that threat, as requested by Ms. Ford‑Perkins, force was applied against him by Mr. Winsor” (para. 107). On this element, the trial judge specifically turned her mind to the reasonable grounds component of s. 34(1)(a) and did not adopt a solely subjective analysis.
[75] Second, under s. 34(1)(b), whether the accused committed the act that constitutes the offence for the purpose of defending or protecting themselves or others from the use or threat of force depends upon the accused’s subjective state of mind; if the purpose is not to defend or protect, then the whole basis of self-defence falls away. Indeed, for this second element, a failure to consider the accused’s personal purpose, a subjective inquiry which goes to the root of self-defence, would have been an error of law (Khill, at para. 59). The trial judge expressly found that there was no other reason Mr. Hodgson used the chokehold but to calm Mr. Winsor down and “thereby protect himself and the others at the party from the threat being posed by Mr. Winsor” (para. 111). No error has been demonstrated in respect of the trial judge’s treatment of this element.
[76] Third, s. 34(1)(c) requires that “the act committed is reasonable in the circumstances”, and s. 34(2) provides a list of nine non-exhaustive factors for the court to consider in making this determination. Parliament expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. What is called for is an assessment of the overall reasonableness of the accused’s conduct according to the statutory factors. Reasonableness is measured according to “the relevant circumstances of the person, the other parties and the act” (Criminal Code, s. 34(2); see also Khill, at para. 64). When a factor is relevant it becomes a mandatory consideration, as s. 34(2) provides that the fact finder “shall” consider all factors set out in paras. (a) to (h) that are relevant in the circumstances of the case (Khill, at para. 68). This objective determination, with its focus on what a reasonable person would have done in comparable circumstances, strikes the appropriate balance between respecting the security of the person who acts and the security of the person acted upon. It also underscores that the law of self-defence “cannot rest exclusively on the accused’s perception of the need to act” (Khill, at para. 2; see also paras. 62 and 65).
[77] Given its reference to the consideration of “what a reasonable person would have done in like circumstances”, it seems most likely that the Court of Appeal took issue with the trial judge’s handling of s. 34(1)(c) (C.A. reasons, at para. 7). The proposition from Khill cited by the Court of Appeal about not slipping into the mind of the accused was directed towards and addressed the type of reasonableness analysis required under s. 34(1)(c). By relying on this quotation, it is likely the Court of Appeal was suggesting that the trial judge had conducted a solely subjective assessment of this element of the section, being the overall reasonableness of Mr. Hodgson’s acts under s. 34(1)(c). However, even on that basis, the trial judge’s treatment of this element discloses no such error.
[78] The trial judge discharged the obligation s. 34(2) places on the finder of fact to consider a wide range of factors in order to determine what a reasonable person would have done in a comparable situation. She separately addressed all factors that the parties argued were relevant, applicable, and worthy of consideration. Under every factor, the trial judge considered and evaluated the material evidence. She tied each relevant factor to the facts as found in the following manner:(a) The nature of the threat: Mr. Winsor was a large man who could likely harm someone and was not complying with requests to leave the house. He was quite intoxicated, tried to impose himself on Crystal Mullin, and pushed Mr. Burke into the wall. That said, he was likely not posing a threat to someone’s life.
(b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: Mr. Winsor was not complying with requests to leave and elbowed Mr. Hodgson in the head when he tried to intervene. It did not seem to the trial judge that non-physical means were reducing the threat he posed.
(c) The person’s role in the incident: Mr. Hodgson was a strong man who was requested to help remove Mr. Winsor from the home.
(d) The use or threatened use of a weapon: No weapons were involved.
(e) The size, age, gender and physical capabilities of the parties to the incident: Mr. Hodgson was 38 years old, 6 feet tall, weighed 210 pounds, and was quite strong. Mr. Winsor was 23 years old, 5 feet 8 inches tall and weighed 304 pounds. The trial judge did not see a significant difference between them.
(f) (f.1) The nature, duration and history of any relationship between the parties to the incident and any history of interaction or communication between the parties to the incident: Mr. Hodgson and Mr. Winsor had no relationship, interaction or communication before that night, although they had spoken for a long time during the party. While Mr. Hodgson was uncomfortable with the way Mr. Winsor was talking about Crystal Mullin and treating Mr. Burke, nobody suggested that there was “bad blood” between the two.
(g) The nature and proportionality of the person’s response to the use or threat of force: A person in a threatening situation need not carefully assess the threat and thoughtfully determine the appropriate response. The situation was a sudden and upsetting one, in which a very heavy man was using violence and ignoring requests to leave. Ms. Ford-Perkins asked Mr. Hodgson to help. Mr. Hodgson observed Mr. Winsor physically resisting attempts to get him to leave. He was not able to pull him away and was hit in his attempt to do so. Given that his dominant hand was injured, many forms of potential control were likely unavailable. In all of the circumstances, a known “calm down” move that could be carried out from behind would have seemed proportional.
(h) Response to use or threat of force that the person knew was lawful: Not applicable. [79] The trial judge then addressed the key question of whether, after assessing all the relevant factors, Mr. Hodgson’s act was reasonable in the circumstances. This assessment of the s. 34(2) factors reveals no error of law. The trial judge’s references to Mr. Hodgson by name operated only to particularize the inquiry to the circumstances of the case at bar. This personalization did not transform the analysis into a solely subjective exercise. Indeed, the trial judge’s reasons make clear that she understood she was to assess whether Mr. Hodgson’s actions were reasonable in the circumstances, and she repeatedly and expressly referred to the appropriate objective standard. For example, she stated:Similarly, if Mr. Hodgson’s evidence were believed, there is some evidence to suggest that his actions were reasonable in the circumstances ....
... Did the Crown prove beyond a reasonable doubt that the choke hold applied by Mr. Hodgson was not reasonable in the circumstances?
...
... A known “calm down” move that could be executed from behind would have seemed to be proportional in all of the circumstances.
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... the Crown has not proven beyond a reasonable doubt that the choke hold was not reasonable in all of the circumstances. [Emphasis added; paras. 104, 112, 120 and 122.] [80] Although Khill was released after the trial judge’s reasons, she nevertheless engaged in the correct analysis. Even before Khill, prior case law consistently applied an objective approach to the aspects of the self-defence analysis that measured an accused’s actions against those of a reasonable person in similar circumstances (see, e.g., R. v. Rasberry, 2017 ABCA 135, 55 Alta. L.R. (6th) 134, at para. 12; R. v. Curran, 2019 NBCA 27, 375 C.C.C. (3d) 551, at para. 16; R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 73; R. v. Grant, 2016 ONCA 639, 351 O.A.C. 345, at para. 63; R. v. Richter, 2014 BCCA 244, 357 B.C.A.C. 305, at para. 37; R. v. Constantine, 2015 ONCA 330, 335 O.A.C. 35, at para. 30; R. v. A.A., 2019 BCCA 389, at para. 33 (CanLII); R. v. Androkovich, 2014 ABCA 418, at para. 9 (CanLII)).
[81] The trial judge’s reasons make clear that she correctly assessed whether Mr. Hodgson’s actions were reasonable in the circumstances under s. 34(1)(c) and that she did not inappropriately focus on what Mr. Hodgson himself thought at the time of the impugned conduct.
[82] Accordingly, we do not see any grounds for concluding that the trial judge erred in law in her analysis or in her application of the law on self-defence.
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