De Minimus Non Curat Lex: Difference between revisions
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The principle of ''de minimus non curat lex'' excludes certain acts from criminal sanctions due to their trivial nature. The principle is based on the premise that the law should not concern itself with trifling matters.<Ref> | The principle of ''de minimus non curat lex'' excludes certain acts from criminal sanctions due to their trivial nature. The principle is based on the premise that the law should not concern itself with trifling matters.<Ref> | ||
see R v Kubassek, [http://canlii.ca/t/1hpvt 2004 CanLII 7571] (ON CA){{perONCA|Catzman JA}} - discusses the English common law history of ''de minimus'' | see ''R v Kubassek'', [http://canlii.ca/t/1hpvt 2004 CanLII 7571] (ON CA){{perONCA|Catzman JA}} - discusses the English common law history of ''de minimus'' | ||
</ref> | </ref> | ||
The doctrine is applied to "harmless conduct" perpetrated by someone who has "not really done anything [criminally] wrong". It is conduct "for which there is no reasoned apprehension or harm to any legitimate personal or social interest."<Ref> | The doctrine is applied to "harmless conduct" perpetrated by someone who has "not really done anything [criminally] wrong". It is conduct "for which there is no reasoned apprehension or harm to any legitimate personal or social interest."<Ref> | ||
R v Carson, [http://canlii.ca/t/1gwq2 2004 CanLII 21365] (ON CA){{TheCourt}} at para 24<br> | ''R v Carson'', [http://canlii.ca/t/1gwq2 2004 CanLII 21365] (ON CA){{TheCourt}} at para 24<br> | ||
</ref> | </ref> | ||
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R v Yum Pur Li, [http://canlii.ca/t/gdhxp 1984 CanLII 3546] (ON SC){{perONSC|Montgomery J}} at p. 386 ("The wealth of authority in my view is that the principle of de minimis non | R v Yum Pur Li, [http://canlii.ca/t/gdhxp 1984 CanLII 3546] (ON SC){{perONSC|Montgomery J}} at p. 386 ("The wealth of authority in my view is that the principle of de minimis non | ||
curat lex has no application to the criminal law. That certainly has been the disposition in appellate courts in Canada in drug related offences.") | curat lex has no application to the criminal law. That certainly has been the disposition in appellate courts in Canada in drug related offences.") | ||
R v Hinchey, [1996] 3 SCR 1128, [http://canlii.ca/t/1fr57 1996 CanLII 157] (SCC){{perSCC|L’Heureux-Dubé J}} (4:3) at para 69 ("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.") | ''R v Hinchey'', [1996] 3 SCR 1128, [http://canlii.ca/t/1fr57 1996 CanLII 157] (SCC){{perSCC|L’Heureux-Dubé J}} (4:3) at para 69 ("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.") | ||
</ref> | </ref> | ||
'''Appellate Review'''<br> | '''Appellate Review'''<br> | ||
The application of the principle of ''de minimus non curat lex'' is a question of law and reviewable on a standard of correctness.<ref> | The application of the principle of ''de minimus non curat lex'' is a question of law and reviewable on a standard of correctness.<ref> | ||
R v Rumo, [http://canlii.ca/t/fwsmc 2013 ONSC 1856] (CanLII){{perONSC|Hourigan J}} at para 11 | ''R v Rumo'', [http://canlii.ca/t/fwsmc 2013 ONSC 1856] (CanLII){{perONSC|Hourigan J}} at para 11 | ||
</ref> | </ref> | ||
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In certain circumstances, Courts have excused minor thefts. | In certain circumstances, Courts have excused minor thefts. | ||
The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.<Ref> | The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.<Ref> | ||
R v Fowler, [http://canlii.ca/t/2669n 2009 SKPC 114] (CanLII){{perSKPC|Harradence J}} | ''R v Fowler'', [http://canlii.ca/t/2669n 2009 SKPC 114] (CanLII){{perSKPC|Harradence J}} | ||
</ref> However, the theft of nail polish was sufficient for a conviction.<ref> | </ref> However, the theft of nail polish was sufficient for a conviction.<ref> | ||
R v Gale, [http://canlii.ca/t/27c73 2009 CanLII 73900] (NL PC){{perNLPC|Gorman J}}<br> | ''R v Gale'', [http://canlii.ca/t/27c73 2009 CanLII 73900] (NL PC){{perNLPC|Gorman J}}<br> | ||
</ref> | </ref> | ||
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see R v Dawydiuk (2010), 253 CCC (3d) 493, [http://canlii.ca/t/290rj 2010 BCCA 162] (CanLII){{perBCCA|Rowles JA}}</ref> | see R v Dawydiuk (2010), 253 CCC (3d) 493, [http://canlii.ca/t/290rj 2010 BCCA 162] (CanLII){{perBCCA|Rowles JA}}</ref> | ||
The strength of the force is immaterial to the consideration of guilt. <ref> | The strength of the force is immaterial to the consideration of guilt. <ref> | ||
see R v Palombi, [http://canlii.ca/t/1rxpz 2007 ONCA 486] (CanLII), (2007), 222 CCC (3d) 528 (Ont. C.A.){{perONCA|Rosenberg JA}}</ref> | see ''R v Palombi'', [http://canlii.ca/t/1rxpz 2007 ONCA 486] (CanLII), (2007), 222 CCC (3d) 528 (Ont. C.A.){{perONCA|Rosenberg JA}}</ref> | ||
It has been pointed out that the level of force or violence is not the sole determiner on the question of the societal interest in criminalizing an offence of violence.<ref> | It has been pointed out that the level of force or violence is not the sole determiner on the question of the societal interest in criminalizing an offence of violence.<ref> | ||
R v Carson, [http://canlii.ca/t/1gwq2 2004 CanLII 21365] (ON CA){{TheCourt}} at para 25 ("The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated")<br> | ''R v Carson'', [http://canlii.ca/t/1gwq2 2004 CanLII 21365] (ON CA){{TheCourt}} at para 25 ("The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated")<br> | ||
</ref> | </ref> | ||
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However, non-consensual touching amounting to a trivial assault can be subject to a ''de minimus'' finding.<ref> | However, non-consensual touching amounting to a trivial assault can be subject to a ''de minimus'' finding.<ref> | ||
R v Juneja, [http://canlii.ca/t/26tk0 2009 ONCJ 572] (CanLII){{perONCJ|Duncan J}}<br> | ''R v Juneja'', [http://canlii.ca/t/26tk0 2009 ONCJ 572] (CanLII){{perONCJ|Duncan J}}<br> | ||
R v Hinchey, [http://canlii.ca/t/1fr57 1996 CanLII 157] (SCC), [1996] 3 SCR 1128, (1996) 111 CCC (3d) 353 (SCC){{perSCC|L'Heureux-Dube J}} at p 380-81 <br> | ''R v Hinchey'', [http://canlii.ca/t/1fr57 1996 CanLII 157] (SCC), [1996] 3 SCR 1128, (1996) 111 CCC (3d) 353 (SCC){{perSCC|L'Heureux-Dube J}} at p 380-81 <br> | ||
</ref> | </ref> | ||
Incidental or innocuous touching could be ''de minimus''.<ref> | Incidental or innocuous touching could be ''de minimus''.<ref> | ||
R v Peniston, [http://canlii.ca/t/5dc0 2003 NSPC 2] (CanLII){{perNSPC|C Williams J}}<br> | ''R v Peniston'', [http://canlii.ca/t/5dc0 2003 NSPC 2] (CanLII){{perNSPC|C Williams J}}<br> | ||
</ref> | </ref> | ||
Even a "light strike" has been found to fall within the meaning of "trifling".<ref> | Even a "light strike" has been found to fall within the meaning of "trifling".<ref> | ||
R v Merasty, [http://canlii.ca/t/5gm8 2002 SKPC 86] (CanLII){{perSKPC|Carter J}}<br> | ''R v Merasty'', [http://canlii.ca/t/5gm8 2002 SKPC 86] (CanLII){{perSKPC|Carter J}}<br> | ||
R v Wiebe, [http://canlii.ca/t/5h7m 2001 SKQB 389] (CanLII){{perSKQB|Wilkinson J}}</ref> | ''R v Wiebe'', [http://canlii.ca/t/5h7m 2001 SKQB 389] (CanLII){{perSKQB|Wilkinson J}}</ref> | ||
However, a grab to the arm and pull of a person 10 to 15 meters is not trifling.<ref> | However, a grab to the arm and pull of a person 10 to 15 meters is not trifling.<ref> | ||
R v Rumo, [http://canlii.ca/t/fwsmc 2013 ONSC 1856] (CanLII){{perONSC|Hourigan J}} | ''R v Rumo'', [http://canlii.ca/t/fwsmc 2013 ONSC 1856] (CanLII){{perONSC|Hourigan J}} | ||
</ref> | </ref> | ||
The pull on an officer's vest was found to be insufficient.<Ref> | The pull on an officer's vest was found to be insufficient.<Ref> | ||
R v Newsome, [http://canlii.ca/t/gww63 2017 BCSC 56] (CanLII){{perBCSC|Hyslop J}} | ''R v Newsome'', [http://canlii.ca/t/gww63 2017 BCSC 56] (CanLII){{perBCSC|Hyslop J}} | ||
</ref> | </ref> | ||
'''Domestic Violence'''<br> | '''Domestic Violence'''<br> | ||
The principle cannot generally be applied in the context of domestic violence.<ref> | The principle cannot generally be applied in the context of domestic violence.<ref> | ||
R v Downey, [http://canlii.ca/t/5g10 2002 NSSC 226] (CanLII){{perNSSC|LeBlanc J}} at para 38<br> | ''R v Downey'', [http://canlii.ca/t/5g10 2002 NSSC 226] (CanLII){{perNSSC|LeBlanc J}} at para 38<br> | ||
''R v RHL'', [2008] NSJ 468 at para 35 (NSCA), [http://canlii.ca/t/2188h 2008 NSCA 100] (CanLII){{perNSCA|Saunder JA}}<br> | ''R v RHL'', [2008] NSJ 468 at para 35 (NSCA), [http://canlii.ca/t/2188h 2008 NSCA 100] (CanLII){{perNSCA|Saunder JA}}<br> | ||
c.f. R v Ferreira, [http://canlii.ca/t/g2mtl 2014 ONCJ 21] (CanLII){{perONCJ|O'Donnell J}} | c.f. ''R v Ferreira'', [http://canlii.ca/t/g2mtl 2014 ONCJ 21] (CanLII){{perONCJ|O'Donnell J}} | ||
</ref> | </ref> | ||
'''Other Scenarios'''<br> | '''Other Scenarios'''<br> | ||
The non-consensual "dancing" with a security staff member is not an assault on the basis of ''de minimus''. <ref> | The non-consensual "dancing" with a security staff member is not an assault on the basis of ''de minimus''. <ref> | ||
R v Murphy, [http://canlii.ca/t/2f4mx 2010 NBPC 40] (CanLII){{perNBPC|Walker J}} | ''R v Murphy'', [http://canlii.ca/t/2f4mx 2010 NBPC 40] (CanLII){{perNBPC|Walker J}} | ||
</ref> | </ref> | ||
Pushing of a minister in the chest nearly causing him to trip is not trifling.<ref> | Pushing of a minister in the chest nearly causing him to trip is not trifling.<ref> | ||
R v Kubassek, [http://canlii.ca/t/1hpvt 2004 CanLII 7571] (ON CA), [2004] O.J. No. 3483 (C.A){{perONCA|Catzman JA}} - overturned trial judge acquittal | ''R v Kubassek'', [http://canlii.ca/t/1hpvt 2004 CanLII 7571] (ON CA), [2004] O.J. No. 3483 (C.A){{perONCA|Catzman JA}} - overturned trial judge acquittal | ||
</ref> | </ref> | ||
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==Drugs== | ==Drugs== | ||
The defence has be invoked in relation to the possession of drugs where the amounts alleged are merely residual particles of a controlled substance. <ref> | The defence has be invoked in relation to the possession of drugs where the amounts alleged are merely residual particles of a controlled substance. <ref> | ||
R v Marusiak, [http://canlii.ca/t/5jv2 2002 ABQB 774] (CanLII){{perABQB|Sullivan J}}<br> | ''R v Marusiak'', [http://canlii.ca/t/5jv2 2002 ABQB 774] (CanLII){{perABQB|Sullivan J}}<br> | ||
c.f. R v Keizer, [http://canlii.ca/t/1x0rb 1990 CanLII 4120] (NS SC){{perNSSC|Richard J}}<Br> | c.f. ''R v Keizer'', [http://canlii.ca/t/1x0rb 1990 CanLII 4120] (NS SC){{perNSSC|Richard J}}<Br> | ||
R v Arne-Ling, [1954] 109 CCC 306, [http://canlii.ca/t/gbh7q 1954 CanLII 409] (AB QB){{perABQB|McBride J}}<Br> | R v Arne-Ling, [1954] 109 CCC 306, [http://canlii.ca/t/gbh7q 1954 CanLII 409] (AB QB){{perABQB|McBride J}}<Br> | ||
c.f. R v Quigley, [http://canlii.ca/t/g9762 1954 CanLII 400] (AB CA){{perABCA|Ford JA}}<Br> | c.f. ''R v Quigley'', [http://canlii.ca/t/g9762 1954 CanLII 400] (AB CA){{perABCA|Ford JA}}<Br> | ||
</ref> | </ref> | ||
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'''Impaird Driving'''<br> | '''Impaird Driving'''<br> | ||
Where the BAC reading was found to be one milligram above the required threshold of BAC 0.8, the doctrine will not apply.<ref> | Where the BAC reading was found to be one milligram above the required threshold of BAC 0.8, the doctrine will not apply.<ref> | ||
R v Usichenko, [http://canlii.ca/t/1cc46 2002 CanLII 7248] (ON SC){{perONSC|Beaulieu J}} | ''R v Usichenko'', [http://canlii.ca/t/1cc46 2002 CanLII 7248] (ON SC){{perONSC|Beaulieu J}} | ||
</ref> | </ref> | ||
'''Mischief'''<br> | '''Mischief'''<br> | ||
Three young accused who pushed a vehicle 10 to 30 feet down the road were not convicted under the doctrine.<Ref> | Three young accused who pushed a vehicle 10 to 30 feet down the road were not convicted under the doctrine.<Ref> | ||
R v Chapman, [http://canlii.ca/t/hv058 1968 CanLII 827] (BC SC){{perBCSC|Harvey J}} | ''R v Chapman'', [http://canlii.ca/t/hv058 1968 CanLII 827] (BC SC){{perBCSC|Harvey J}} | ||
</ref> | </ref> | ||
The interference of enjoyment of a property by momentarily entering it was considered a trivial interference insufficient to make out the ''mens rea'' or ''actus reus''.<Ref> | The interference of enjoyment of a property by momentarily entering it was considered a trivial interference insufficient to make out the ''mens rea'' or ''actus reus''.<Ref> | ||
R v Gibson, [http://canlii.ca/t/g7hft 1976 CanLII 953] (SK QB) | ''R v Gibson'', [http://canlii.ca/t/g7hft 1976 CanLII 953] (SK QB) | ||
</ref> | </ref> | ||
'''Breach of Court Orders'''<br> | '''Breach of Court Orders'''<br> | ||
The degree of breach of a publication ban is not relevant to consideration of whether the offence is made out.<ref> | The degree of breach of a publication ban is not relevant to consideration of whether the offence is made out.<ref> | ||
R v Banville, [http://canlii.ca/t/gbcjr 1983 CanLII 3027] (NB QB){{perNBQB|Hoyt J}} - publication of 17 copies of a paper | ''R v Banville'', [http://canlii.ca/t/gbcjr 1983 CanLII 3027] (NB QB){{perNBQB|Hoyt J}} - publication of 17 copies of a paper | ||
</ref> | </ref> | ||
However, text message contact with the complainant to make arrangements for childcare was considered a trivial breach of a no-contact order.<REf> | However, text message contact with the complainant to make arrangements for childcare was considered a trivial breach of a no-contact order.<REf> | ||
R v Arsenault, [http://canlii.ca/t/hrdq1 2018 ONCJ 224] (CanLII){{perONCJ|Bliss J}} | ''R v Arsenault'', [http://canlii.ca/t/hrdq1 2018 ONCJ 224] (CanLII){{perONCJ|Bliss J}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 20:23, 12 January 2019
- < Criminal Law
- < Defences
General Principles
The principle of de minimus non curat lex excludes certain acts from criminal sanctions due to their trivial nature. The principle is based on the premise that the law should not concern itself with trifling matters.[1]
The doctrine is applied to "harmless conduct" perpetrated by someone who has "not really done anything [criminally] wrong". It is conduct "for which there is no reasoned apprehension or harm to any legitimate personal or social interest."[2]
The availability of lower end penalties, such as absolute discharges, for a conviction can be influential on whether the decline to apply the doctrine to some minor offences.[3]
History
The doctrine has its origin in the English common law in the 16th century.[4]
Dispute on Application in Criminal Law
While there are courts that have applied the doctrine in many circumstances, there remains some contention that the doctrine has no application in criminal law.[5]
Appellate Review
The application of the principle of de minimus non curat lex is a question of law and reviewable on a standard of correctness.[6]
- ↑ see R v Kubassek, 2004 CanLII 7571 (ON CA), per Catzman JA - discusses the English common law history of de minimus
- ↑
R v Carson, 2004 CanLII 21365 (ON CA), per curiam at para 24
- ↑ R v CDW, 2016 NSPC 31 (CanLII), per Derrick J at para 38
- ↑
Taverner v. Cromwell (1594), 78 E.R. 601
The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482 at 1484
- ↑ R v Yum Pur Li, 1984 CanLII 3546 (ON SC), per Montgomery J at p. 386 ("The wealth of authority in my view is that the principle of de minimis non curat lex has no application to the criminal law. That certainly has been the disposition in appellate courts in Canada in drug related offences.") R v Hinchey, [1996] 3 SCR 1128, 1996 CanLII 157 (SCC), per L’Heureux-Dubé J (4:3) at para 69 ("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.")
- ↑ R v Rumo, 2013 ONSC 1856 (CanLII), per Hourigan J at para 11
Property Offences
In certain circumstances, Courts have excused minor thefts. The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.[1] However, the theft of nail polish was sufficient for a conviction.[2]
- ↑ R v Fowler, 2009 SKPC 114 (CanLII), per Harradence J
- ↑
R v Gale, 2009 CanLII 73900 (NL PC), per Gorman J
Offences of Violence
There is "limited" societal interest in applying 'de minimus to offences of violence.[1]
In general, the least touching of another person without their consent constitutes an assault.[2] The strength of the force is immaterial to the consideration of guilt. [3] It has been pointed out that the level of force or violence is not the sole determiner on the question of the societal interest in criminalizing an offence of violence.[4]
Spitting is not a de minimus offence as it poses a risk of transmission of disease.[5]
However, non-consensual touching amounting to a trivial assault can be subject to a de minimus finding.[6]
Incidental or innocuous touching could be de minimus.[7] Even a "light strike" has been found to fall within the meaning of "trifling".[8] However, a grab to the arm and pull of a person 10 to 15 meters is not trifling.[9]
The pull on an officer's vest was found to be insufficient.[10]
Domestic Violence
The principle cannot generally be applied in the context of domestic violence.[11]
Other Scenarios
The non-consensual "dancing" with a security staff member is not an assault on the basis of de minimus. [12]
Pushing of a minister in the chest nearly causing him to trip is not trifling.[13]
- ↑
R. v W.(C.D.) 2016 NSPC 31 (CanLII), per C Williams J at para 22
R v S.A.W., 2002 NSPC 40 (CanLII), per C Williams J - carrying and "tweak"-ing of complainant's nose. - ↑ see R v Dawydiuk (2010), 253 CCC (3d) 493, 2010 BCCA 162 (CanLII), per Rowles JA
- ↑ see R v Palombi, 2007 ONCA 486 (CanLII), (2007), 222 CCC (3d) 528 (Ont. C.A.), per Rosenberg JA
- ↑
R v Carson, 2004 CanLII 21365 (ON CA), per curiam at para 25 ("The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated")
- ↑
R v DH, 2017 ABPC 132 (CanLII), per Cornfield J
- ↑
R v Juneja, 2009 ONCJ 572 (CanLII), per Duncan J
R v Hinchey, 1996 CanLII 157 (SCC), [1996] 3 SCR 1128, (1996) 111 CCC (3d) 353 (SCC), per L'Heureux-Dube J at p 380-81
- ↑
R v Peniston, 2003 NSPC 2 (CanLII), per C Williams J
- ↑
R v Merasty, 2002 SKPC 86 (CanLII), per Carter J
R v Wiebe, 2001 SKQB 389 (CanLII), per Wilkinson J - ↑ R v Rumo, 2013 ONSC 1856 (CanLII), per Hourigan J
- ↑ R v Newsome, 2017 BCSC 56 (CanLII), per Hyslop J
- ↑
R v Downey, 2002 NSSC 226 (CanLII), per LeBlanc J at para 38
R v RHL, [2008] NSJ 468 at para 35 (NSCA), 2008 NSCA 100 (CanLII), per Saunder JA
c.f. R v Ferreira, 2014 ONCJ 21 (CanLII), per O'Donnell J - ↑ R v Murphy, 2010 NBPC 40 (CanLII), per Walker J
- ↑ R v Kubassek, 2004 CanLII 7571 (ON CA), [2004] O.J. No. 3483 (C.A), per Catzman JA - overturned trial judge acquittal
Drugs
The defence has be invoked in relation to the possession of drugs where the amounts alleged are merely residual particles of a controlled substance. [1]
The existence of drug residue can be evidence of past possession.[2]
- ↑
R v Marusiak, 2002 ABQB 774 (CanLII), per Sullivan J
c.f. R v Keizer, 1990 CanLII 4120 (NS SC), per Richard J
R v Arne-Ling, [1954] 109 CCC 306, 1954 CanLII 409 (AB QB), per McBride J
c.f. R v Quigley, 1954 CanLII 400 (AB CA), per Ford JA
- ↑ R v McBurney (1974), 15 CCC (2d) 361 (BCSC), 1974 CanLII 1550 (BC SC), per Berger J ("A minute trace is evidence of earlier possession. It does not establish a present possession.")
Other Offences
Impaird Driving
Where the BAC reading was found to be one milligram above the required threshold of BAC 0.8, the doctrine will not apply.[1]
Mischief
Three young accused who pushed a vehicle 10 to 30 feet down the road were not convicted under the doctrine.[2]
The interference of enjoyment of a property by momentarily entering it was considered a trivial interference insufficient to make out the mens rea or actus reus.[3]
Breach of Court Orders
The degree of breach of a publication ban is not relevant to consideration of whether the offence is made out.[4]
However, text message contact with the complainant to make arrangements for childcare was considered a trivial breach of a no-contact order.[5]
- ↑ R v Usichenko, 2002 CanLII 7248 (ON SC), per Beaulieu J
- ↑ R v Chapman, 1968 CanLII 827 (BC SC), per Harvey J
- ↑ R v Gibson, 1976 CanLII 953 (SK QB)
- ↑ R v Banville, 1983 CanLII 3027 (NB QB), per Hoyt J - publication of 17 copies of a paper
- ↑ R v Arsenault, 2018 ONCJ 224 (CanLII), per Bliss J