R v Hodgson, 2022 NUCA 9

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Hodgson, 2022 NUCA 9 Date: 20221021 Docket: 08-21-010-CAP Registry: Iqaluit Between: His Majesty the King Appellant - and - Daniel Hodgson Respondent _______________________________________________________ The Court: The Honourable Justice Schutz The Honourable Justice Campbell The Honourable Justice Pentelechuk _______________________________________________________ Memorandum of Judgment

Appeal from the Decision by The Honourable Justice S. Charlesworth Dated the 12th day of May, 2021 (Docket: 08-17-173-1) ______________________________________________________ Memorandum of Judgment _______________________________________________________ [1] This is a Crown appeal from the acquittal of the respondent, Daniel Hodgson, on a charge of second-degree murder.

In oralreasons, the trial judge found no intent to murder, and that the Crown had otherwise not disproven self-defence beyond a reasonabledoubt on the lesser included offence of manslaughter. [2] The victim, Bradley Winsor, died at a house party in Iqaluit, Nunavut. All the witnesses at the party, and the respondent andvictim had been consuming alcohol; some were clearly intoxicated. Mr Winsor was asked to leave the party after becoming aggressivetowards the house owner, with whom he had previously been intimate.

When he would not leave and refused to return a party-goer’struck keys, one of the other guests, Ms Ford-Perkins, woke up the respondent who was sleeping in a nearby bedroom and asked for hishelp removing Mr Winsor from the house. Within mere minutes however, Mr Winsor died after the respondent applied a one-armchokehold on him from behind. [3] The respondent testified that believing Mr Winsor was about to strike Ms Ford-Perkins, he put his hands on Mr Winsor’sshoulders from behind and tried to pull him backwards.

When that did not work and Mr Winsor had elbowed him in the head, he put MrWinsor in an arm lock or chokehold with his right arm. The two men struggled and soon fell to the ground; the respondent finallyremoved his hands “seconds later”, but Mr Winsor had turned red and ultimately stopped breathing. The respondent testified thechokehold was 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.

The respondent stated that he had seen law enforcement on video usechokeholds to induce unconsciousness; he also saw such a technique used effectively when he was a bouncer in 1998 and had used ithimself in 2016, whereupon the person on whom he had applied a chokehold went unconscious for 30 seconds.

When asked whether hewas aware chokeholds were dangerous, he replied “I can’t say for sure, no”; the respondent did acknowledge seeing news stories ofpeople dying as a result of being placed in chokeholds by police. [4] After determining the appellant had no intent for second degree murder, the trial judge found that there was an air of realityto self-defence and the Crown had not proven that the appellant’s actions were unreasonable in all the circumstances. No one disputedthe victim was a large man (over 300 pounds), or that he had cocaine in his system and had an enlarged heart.

While compression of theneck was the immediate cause of death and the victim’s hyoid bone had been broken, the victim’s weight and cocaine consumption werenot ruled out by the medical experts as factors bearing on his death.

The trial judge found that the events happened very quickly,including the chokehold, and expert evidence from Dr Chiasson raised “the possibility that the choke hold was fatal only because offactors internal to [Mr Winsor] that were obviously unknown to” the respondent. [5] While the Crown raised R v Lemmon, 2012 ABCA 103, 524 AR 164 [Lemmon], and submitted that a chokehold was aninherently dangerous act, the trial judge did not address this issue in her reasons for acquittal, either in respect of the intent for murder ormanslaughter, but, rather, appeared to accept that a chokehold was a “regular ‘calm down’ method” or a “known calm down move”.While the respondent admitted he was trying to stop Mr Winsor from struggling, including possibly rendering him unconscious, the trialjudge did not assess this evidence with respect to what the respondent believed or intended considering the dangerousness of squeezingMr Winsor’s neck to the point of unconsciousness, or the possible recklessness of his actions.

But for this error, the verdict on seconddegree murder may well have been different. [6] Blocking someone’s airway is always

an act which is more than merely transient or trifling in nature. Further as Lemmonprovides at para 28: “Rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous actthat is easily capable of causing death, or brain injury with devastating lifelong consequences... The difference in the outcome, betweenunconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure.” The medical evidence and theexpert testimony suggested as much in this case.

As the Supreme Court of Canada provided in R v Cooper, (SCC),[1993] 1 SCR 146 at 159, 78 CCC (3d) 289: “Since breathing is essential to life, it would be reasonable [though not required] to infer theaccused knew that strangulation was likely to result in death”. [7] Three requirements must be met under s 34(1) of the Criminal Code for self-defence: (

a) the accused must believe onreasonable grounds that force is being used or threatened against them or another person; (

b) the accused’s subjective purpose of the actmust be to protect or defend themselves or others; and (

c) the act committed must be reasonable in the circumstances. Section 34(2) setsout a non-exhaustive list of factors that shall be considered in determining whether an accused’s act was reasonable in the circumstances. When considering the defence of self-defence in this matter, the trial judge did not assess the respondent’s actions in considering what areasonable person would have done in like circumstances.

As the Supreme Court of Canada recently restated in R v Khill, 2021 SCC 37at para 2, 409 CCC (3d) 141 [Khill]: The contours of our law of self-defence are tied to our notions of culpability, moral blameworthiness and acceptable human behaviour.To the extent self-defence morally justifies or excuses an accused’s otherwise criminal conduct and renders it non-culpable, it cannot

rest exclusively on the accused’s perception of the need to act . Put another way, killing or injuring another cannot be lawful simply because the accused believed it was necessary . Self-defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances.

A fact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation. [Emphasis added] [ 8 ] While the trial judge did not have the benefit of Khill , which was released after the trial decision in this matter, the reasonableness of an accused’s response to a perceived threat has consistently been measured by considering what a reasonable person would have done in like circumstances; see for example, R v Rasberry , 2017 ABCA 135 at para 12 , 348 CCC (3d) 333.

We agree with the Crown that the trial judge improperly took a solely subjective approach to assessing the respondent’s response to the perceived threat posed by Mr. Winsor. As stated in Khill at para 65 : “. . . 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.” [ 9 ] Crown appeals are limited to errors of law which have a material bearing on the acquittal: R v Graveline , 2006 SCC 16 , [2006] 1 SCR 609; R v Ammar , 2020 ABCA 336 at paras 45-51 . Having reviewed the evidence and the reasons in this matter, we find the appellant has met that burden in this case and appellate intervention is warranted. [ 10 ] The appeal is therefore allowed, and a new trial is ordered.

Appeal heard on September 20, 2022 Memorandum filed at Iqaluit, Nunavut this 21st day of October, 2022 Schutz, J.A. Campbell, J.A. Pentelechuk, J.A. Appearances: Laborde, J. For the Appellant Martin, M. For the Respondent