Distinguishing questions of law from questions of fact is not always easy. The distinction can be important, as where a right of appeal is limited to appeal on a question of law only.
Where a person has been acquitted of an offence, the prosecutor will usually only have a right of appeal on a question of law. [1]
The Supreme Court of Canada has addressed the meaning of “question of law” in R v Hodgson, 2024 SCC 25 at [32]-[36]. If a question does not depend on contested facts, it will generally be a question of law (for example, statutory interpretation, the scope of a right, or the definition of the elements of an offence [33]). Sometimes, the way a trial judge has assessed the evidence can give rise to a question of law, for example if a finding of fact was not supported by evidence, if the legal consequence of a finding of fact was in error, if the evidence was assessed on the basis of a wrong legal principle, or if the judge failed to assess all the evidence in relation to the ultimate issue of guilt or innocence [35].
Other questions of law are whether a fact is relevant, whether probative value excedes prejudicial effect, and more generally, whether evidence is admissible and whether a judicial discretion has been exercised in accordance with principle. [2]
In Hodgson the Court added that acquittals are not overturned lightly, and that the prosecutor must convince the appeal court “to a reasonable degree of certainty” that the verdict of acquittal would not necessarily have been the same had the error not occurred, and that the burden in this respect is very heavy. [36] [3]
The Supreme Court in Hodgson emphasised the need for the court below to be clear on what question of law it was deciding in the appeal [37], [39]-[40]. For example, where an appeal court overturns an acquittal because it concludes that a trial judge erred in assessing the evidence based on a wrong legal principle, “it should explain which principle is at issue, which of its components or aspects is at the root of the error, and how the trial judge’s reasons demonstrate an erroneous understanding or misapprehension of that component or aspect.” [43].
Other aspects of this appeal concerned the mens rea for murder, and the mental elements of self-defence. The trial judge had not erred in law in these respects, so the appeal was allowed and the acquittal restored.
Rowe J concurred, and added that it would be an error of law for the judge’s reasoning to incorporate a “myth” (for example - although “myths” is an open category - by making use of one of the twin myths that have been identified in sexual assault cases [4]).
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[1] See, for example, s 296 of the Criminal Procedure Act 2011 [NZ], s 676(1)(a) of the Criminal Code of Canada.
[2] Illustrative cases include R v Gwaze [2010] NZSC 52 at [49]-[53] (noted here on 18 May 2010), DPP v Ziegler [2021] UKSC 23 at [54], R v JMH, 2011 SCC 45 (noted here on 27 October 2011).
[3] See also the footnote to my note on McElrath v Georgia, 22 February 2024.
[4] See my discussion of R v Kruk here on 9 March 2024.
