Criminal Conduct Without Concern The De Minimus Non Curat Lex Doctrine for Trivial Matters

[11]  On the question of whether the principle of de minimus non curat lex is applicable, it is my view the principle and its meaning has been explained and commented on by enough concurrent and higher courts without any definitive statement of its unavailability, that it is an available “defence” to criminal liability.  I readily concede that this position is subject of debate.

[12]  Hill J., sitting as a Summary Conviction Appeal Court in R. v. Juliano [2002] O.J. No. 699 (S.C.J.) at para 24-25, questioned, without answering, whether the principle does apply to criminal law.  He wrote:

Mr. Schneiderman presses a second and related submission … that the com­munication here is of such a minimal and inconsequential sort as to attract application of the principle of de minimis non curat lex. I very much doubt, as have others, that the de minimus principle has application to the criminal law: Regina v. Li (1985), 1984 CanLII 3546 (ON SC), 16 C.C.C. (3d) 382 (Ont. H.C.J.) at 384 per Montgomery J.; Regina v. Quigley (1954), 1954 CanLII 400 (AB CA), 111 C.C.C. 81 (Alta. C.A.) at 82, 84 per Ford J.A.; Regina v. McLeod (1955), 1955 CanLII 454 (BC CA), 111 C.C.C. 137 (B.C.C.A.) at 137 per Sloan C.J.B.C., at 138 per O'Halloran J.A., at 140 per Bird J.A.; Regina v. Boyesen (1982), 75 Cr. App. R. 51 (H.L.) at 54-57 per Lord Scarman.

However, it may be that the de minimis principle in some measure, at least indirectly, informs our definition of criminal responsibility and fault, for example, restraint in describing the actus reus of a crime (Regina v. Greenwood; Regina v. Tsinonis (1991), 1991 CanLII 2730 (ON CA), 67 C.C.C. (3d) 435 (Ont. C.A.) at 450-452 per Doherty J.A.) or the mens rea of an offence (Regina v. McDougall (1990), 1990 CanLII 6788 (ON CA), 1 O.R. (3d) 247 (C.A.) at 257-261 per Doherty J.A.), and line-drawing as to causation respecting consequential crimes (Nette v. The Queen (2002), 2001 SCC 78 (CanLII), 158 C.C.C. (3d) 486 (S.C.C.) at 504-513 per Arbour J.).

[13]  Two decisions of the Ontario Court of Appeal in R. v. Murdock 2003 CanLII 4306 (ON CA), [2003] O.J. No. 2470 and R. v. Carson [2004] O.J. No. 1530 lend some support for the application of the de minimus principle.  Addressing the submission in Murdock that as a matter of fundamental justice, conduct can only be criminalized if it meets a minimum level of harm, Doherty J.A. responded:

Braidwood J.A., in a well-reasoned analysis in R. v. Malmo-Levine (2000), 2000 BCCA 335 (CanLII), 145 C.C.C. (3d) 225 at 246-82 (B.C.C.A.), leave to appeal to S.C.C. granted [2000] S.C.C.A. No. 490, accepted that the "harm principle" was a principle of fundamental justice. He framed the principle in these words at p. 275:

The proper way of characterizing the "harm principle" in the context of the Charter is to determine whether the prohibited activities hold a "reasoned apprehension of harm" to other individuals or society: ... the degree of harm must be neither insignificant nor trivial. (para 27)

I find the analysis provided by Braidwood J.A. in Malmo-Levine, supra, persuasive. In addition to the sources he refers to in support of his conclusion that the harm principle is a principle of fundamental justice, I would add that the concept has strong common law roots. The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statues, where possible, should not be read so as to encompass conduct which is trivial or harmless: R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128 at para. 36; Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031 at 1082. (para 29)

…

It is not for the judiciary under the guise of applying the harm principle as a principle of fundamental justice to choose from among the competing theories of harm advanced by criminal law theorists. The harm principle, as a principle of fundamental justice, goes only so far as to preclude the criminalization of conduct for which there is no "reasoned apprehension of harm" to any legitimate personal or societal interest. If conduct clears that threshold, it cannot be said that criminalization of such conduct raises the spectre of convicting someone who has not done anything wrong. Difficult questions such as whether the harm justifies the imposition of a criminal prohibition or whether the criminal law is the best way to address the harm are policy questions that are beyond the constitutional competence of the judiciary and the institutional competence of the criminal law adversarial process. (Para 33)

[14]  Authority for availability of the de minimus doctrine finds itself grounded in Justice L’Heureux-Dubé’s obiter comments in R. v. Hinchey 1996 CanLII 157 (SCC), [1996] S.C.J. No. 121 at para 69 in which she opined:

...assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where an accused has "technically" violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.

[15]  That day has not yet come.  Given the opportunity to endorse or reject the doctrine, our Court of Appeal has declined to do so.  In Carson, supra, para 24-25, the Court wrote:

The appellant submits, in the alternative, that the trial judge's decision is contrary to the principle of "de minimus non curat lex", that the law does not concern itself with trifles': see R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128. This principle seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest: R. v. Murdock, supra.

We would not give effect to this submission. Hinchey dealt with the acceptance of a benefit by a public servant. In that case, the Supreme Court of Canada explicitly did not decide on the applicability of the de minimus principle as a defence to criminal culpability.

[16]  In the absence of a rejection of the principle, the rationale for its availability and application was explained by Duncan J. in R. v. Juneja 2009 ONCJ 572 (CanLII), [2009] O.J. No. 5119 (C.J.) and ODonnell J. in R. v. Ferreira 2014 ONCJ 21 (CanLII), [2014] O.J. No. 189 (C.J.).  The logic of their respective analyses are persuasive.  Duncan J. started from the premise that the de minimus doctrine had not been authoritatively adopted or rejected but found some oblique appellate support for its application from R. v. Wolfe (1974) 1974 CanLII 1643 (ON CA), 20 C.C.C. (2d) 382 (Ont. C.A.) where the Court entered an acquittal on a charge of assault bodily harm because the defendant's actions were found to be "reflexive" and therefore not intentional but also because “in any event, the encounter was a trifling one and we have come to the conclusion that the appeal ought to be allowed and the finding of guilt set aside...".  (Juneja, supra, para 12).  Other trial decisions such as R. v. Lepage (1989) 1989 CanLII 4548 (SK QB), 74 C.R. (3d) 368 ((Sask QB) and R. v. Kormos (1998) 1998 CanLII 14958 (ON SC), 14 C.R. (5th) 312 (Ont. C.J.) make reference to the de minimus principle in support of its conclusions.

[17]  Lacking cases rejecting the legal availability of the de minimus principle in appropriate circumstances, Duncan J. found unanimous authority in favour of the doctrine and was, accordingly, prepared to apply it.  (Juneja, supra, para 14).  He also recognized the importance of the de minimus doctrine to the criminal law to relieve against overly broad criminal offences that ensnare trivial or unintended violations (see Hinchey, supra) and to preserve dignity and respect for the administration of justice by not trivializing the important work of the courts and to ensure that scarce time and resources are not wasted. (Juneja, supra, para 15)

[18]  Commenting favourably on the Juneja decision as well as the philosophy underlying the existence of the doctrine, ODonnell J. referred to the reasons of Catzman J.A. in R. v. Kubassek 2004 CanLII 7571 (ON CA), [2004] O.J. No. 3483 at para 19 in which he traced the genesis for the principle de minimis non curat lex to Taverner v. Dominum Cromwell (1594), 78 E.R. 601 and noted that the principle was further amplified by Sir Walter Scott (later Lord Stowell) in The Reward (1818), 2 Dods. 265, 165 E.R. 1482 at 1484 where he wrote:

The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.

[19]  In Ferreira, ODonnell J. wrote that “for the time being, however, there is no clear appellate guidance as to the availability or unavailability of the doctrine of de minimus in Ontario. It seems to me, that while such a doctrine will necessarily be of narrow ambit, it is appropriate that such a doctrine be recognized as a legitimate means of permitting a criminal court, in the words of The Reward, supra, properly to overlook a deviation that was a mere trifle that would weigh little or nothing on the public interest. The criminal law is a blunt instrument and it is consistent with the good repute of the administration of justice that the courts reserve to themselves the right, in appropriate cases, to safeguard a defendant from a criminal finding where the conduct, although technically criminal, is so trifling as to raise no abiding concern.” (Ferreira, supra, para 26)

[20]  In the absence of clear authority precluding the application of the de minimus principle to appropriate cases, I am of the view that it is available.  In the case before me, Mr. Arsenault is charged under s.127 of the Criminal Code with breaching the Court Order of Bird J.  The prosecution referred me to Greene J.’s opinion in R. v. Gibbons 2010 ONCJ 470 (CanLII), [2010] O.J. No. 4448 (C.J.) at para 10 in which she held that “[e]ssentially s.127 of the Criminal Code makes it an offence to breach any Court Order regardless of the nature of the Court Order or the circumstances surrounding the making of the Court Order.  Even the most trivial breach of a Court Order is an offence”.  With respect, I do not agree.  The criminal law provides, where appropriate, for consideration whether the “offence” and the public or societal interest is so trivial or of such a mere trifle that criminal sanction should not follow.