17 Crim. L.Q. 273 (1974-1975)
Hodge's Case and Criminal Intent

handle is hein.journals/clwqrty17 and id is 287 raw text is: Hodge's Case and Criminal Intent
E. E. Smith.
It is of great comfort to the legal mind that the law has
finally gone full circle and recognized that the rule in
Hodge and the doctrine of reasonable doubt are really in-
distinguishable one from the other. Hodge's Case did not
add to or subtract from the requirement that proof of guilt
in a criminal case must be beyond a reasonable doubt. See
R. v. Mitchell, [1965] 1 C.C.C. 155 at p. 167, 43 C.R. 391
(S.C.C.). And more recently, per Ritchie, J., in R. v. John
(1970), 2 C.C.C. (2d) 157 at pp. 165-6, 15 C.R.N.S. 257
(S.C.C.):
. . . the language used in Hodge's Case, does nothing more
than provide a graphic illustration of the principle that where
the evidence is purely circumstantial it must be made plain to
the jury that in order to be satisfied of the guilt of the accused
beyond a reasonable doubt, they must first be satisfied that the
circumstances are such as to be inconsistent with any other
rational conclusion than that the accused was the guilty person.
Unfortunately the full impact of this development has
not made itself felt in the only meaningful way possible,
namely, by marking for Hodge's Case the beginning of a
firm and irreversible discrediting process leading to its
eventual abolition. We refer to abolition of the rule in
terms only of the rigidity of its form, a quality acquired, at
least in Canada, almost from the time of its initial formula-
tion by Baron Alderson in 1838. We clearly view the need
for some direction to the jury in a judge's charge when
proof of an issue is by circumstantial evidence, as being of
vital necessity. But if Hodge and reasonable doubt are one
and the same thing, it should not be necessary to maintain
both in separate and distinct form. Nor is it desirable to
*His Honour, Judge E. E. Smith, Ottawa, Canada.

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