Identifying questions of law: R v Hodgson, 2024 SCC 25

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.

Construing "otherwise": Fischer v United States USSC 23-5572

Law teachers who have to keep first year students amused will be delighted with Fischer v United States USSC 23-5572 (28 June 2024).

We all know the old maxims of statutory interpretation, noscitur a sociis and ejusdem generis. They seem to answer the question of what a general expression means when it follows a list of specifics. They both suggest that the general expression should have its meaning coloured, or focused, by the specifics.

The example in Fischer is this piece of legislation, 18 U.S.C. 1512(c):

“(c) Whoever corruptly—

“(1) alters, destroys, mutilates, or conceals a record,

document, or other object, or attempts to do so, with the

intent to impair the object’s integrity or availability for

use in an official proceeding; or

“(2) otherwise obstructs, influences, or impedes any

official proceeding, or attempts to do so,

“shall be fined . . . or imprisoned not more than 20 years, or both.”

Does the word “otherwise” mean in ways like those specified in (1), or is it more general?

Whether the maxims apply depends, as this case illustrates, on the purpose or purposes of the legislator, the structure of the enactment and the context of the section, the need to avoid redundancy, the more general consequences of a proposed interpretation, and the courts’ approach to similar legislation. Indeed, the maxims seem to be, at least in this case, more useful as a description of the result of interpretation than as a guide to what interpretation should be applied.

The Court in Fischer was divided. Roberts CJ, delivering the opinion of the Court, put its conclusion in this way:

“ … subsection (c)(1) refers to a defined set of offense conduct—four types of actions that, by their nature, impair the integrity or availability of records, documents, or objects for use in an official proceeding. When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct, subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1).”

The dissenters, Barrett J, joined by Sotomayor and Kagan JJ, found the canons of interpretation a poor fit, (“like using a hammer to pound in a screw”), noting the division of the section into separate paragraphs, having different verbs and different objects, making them independent and with different mens rea requirements. They therefore construed the word “otherwise” broadly, whereas the majority held that it gave the general phrase a more specific meaning.

The Chief Justice managed to work in the word “pumpfake”.