Criminal Law Notebook

De Minimus Non Curat Lex

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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]

  1. ↑ see R v Kubassek, 2004 CanLII 7571 (ON CA), per Catzman JA - discusses the English common law history of de minimus
  2. ↑ R v Carson, 2004 CanLII 21365 (ON CA), per curiam at para 24
  3. ↑ R v CDW, 2016 NSPC 31 (CanLII), per Derrick J at para 38
  4. ↑ Taverner v. Cromwell (1594), 78 E.R. 601
    The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482 at 1484
  5. ↑ 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.")
  6. ↑ 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]

  1. ↑ R v Fowler, 2009 SKPC 114 (CanLII), per Harradence J
  2. ↑ 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]


  1. ↑ 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.
  2. ↑ see R v Dawydiuk (2010), 253 CCC (3d) 493, 2010 BCCA 162 (CanLII), per Rowles JA
  3. ↑ see R v Palombi, 2007 ONCA 486 (CanLII), (2007), 222 CCC (3d) 528 (Ont. C.A.), per Rosenberg JA
  4. ↑ 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")
  5. ↑ R v DH, 2017 ABPC 132 (CanLII), per Cornfield J
  6. ↑ 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
  7. ↑ R v Peniston, 2003 NSPC 2 (CanLII), per C Williams J
  8. ↑ R v Merasty, 2002 SKPC 86 (CanLII), per Carter J
    R v Wiebe, 2001 SKQB 389 (CanLII), per Wilkinson J
  9. ↑ R v Rumo, 2013 ONSC 1856 (CanLII), per Hourigan J
  10. ↑ R v Newsome, 2017 BCSC 56 (CanLII), per Hyslop J
  11. ↑ 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
  12. ↑ R v Murphy, 2010 NBPC 40 (CanLII), per Walker J
  13. ↑ R v Kubassek, 2004 CanLII 7571 (ON CA), [2004] OJ 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]

  1. ↑ 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
  2. ↑ 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]

  1. ↑ R v Usichenko, 2002 CanLII 7248 (ON SC), per Beaulieu J
  2. ↑ R v Chapman, 1968 CanLII 827 (BC SC), per Harvey J
  3. ↑ R v Gibson, 1976 CanLII 953 (SK QB)
  4. ↑ R v Banville, 1983 CanLII 3027 (NB QB), per Hoyt J - publication of 17 copies of a paper
  5. ↑ R v Arsenault, 2018 ONCJ 224 (CanLII), per Bliss J
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