Sunday, September 14, 2014

Rule in Hodge's Case

The Rule in Hodge's Case (1838), 168 E.R. 1135 is generally taken to say:

"In a case made up entirely of circumstantial evidence, before the accused could be found guilty, the jury must be satisfied, not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion, than that the prisoner was the guilty person." 

The Court of Appeal in R v Bui 2014 ONCA 614 makes it clear this does not mean only conclusions based on proven facts but more generally in a purely circumstantial case the accused is entitled to a full reasonable doubt analysis:

[24]       I agree with the appellant that the trial judge erred in law in holding that, when assessing circumstantial evidence, conclusions alternative to the guilt of the accused must arise from "proven facts". Further, in my view, the trial judge's reasons demonstrate that this error infected his reasoning process.

[25]       In R. v. Robert (2000), 143 C.C.C. (3d) 330, at para. 15, this court explained that, since the decision of the Supreme Court of Canada in R. v. Cooper, [1978] 1 S.C.R. 860, it has been clear that the rule in Hodge's Case is not "an inexorable rule of law in Canada". Further, the rule's reference to requiring "proven facts" to ground alternative explanations is problematic because there is no obligation on an accused to prove any facts. Rather, an accused is entitled to an acquittal if there is "a reasonable doubt on all of the evidence, a conclusion sustainable at a threshold significantly lower than a "reasonable inference" from "proven facts"": Robert, at paras. 17, 21 and 25.

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