De minimus non curat lex

R. v. Juneja, 2009 ONCJ 572 (CanLII) provides a good source for the application of the doctrine of de minimus:

 

De minimus non curat lex:

 

10.   I find that the defendant did put his hand around the wrist of the complainant and that that contact was not consensual. However, I do not think it is likely or believable that the defendant pulled or “yanked” the complainant. At most some directional pressure may have been applied. If the complainant incurred a scratch as he claimed (it couldn’t see it in the photographs) I find that it was most likely from his own action of pulling away from the defendant. It is my view that if the non-consensual touching as found amounts to an assault that it was trivial and subject to the legal maxim de minimus non curat lex.

 

11.    The de minimus  doctrine has never been authoritatively adopted – or rejected – as being applicable in Canadian criminal law. A number of trial courts have applied it in assault and drug cases but to date there has been no decision from the Supreme Court of Canada or any provincial Court of Appeal bearing directly on the issue: see discussion in Stuart: Canadian Criminal Law (4^th Ed) p 594- 599 and cases cited therein.

 

12.   One case not cited by Stuart is R v Wolfe (1974) 20 CCC2d 382 (Ont CA) 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…”

 

While this is admittedly rather oblique authority, in my view it provides some appellate support for the availability of the defence.

13.   More directly on point are some of the trial decisions, particularly R v Lepage (1989) 74 CR 3d 368 ((Sask QB) and R v Kormos(1998) 14 CR 5^th 312 (Ont CJ).  This latter case also cites R v Bochar [1994] OJ 1153 a case that is factually similar to the present case, involving a school principal taking a resistant teacher by the arm to guide her to the office in order to speak with her. The court acquitted of assault on a finding that the touching was “directional not forceful”, as I have found here, but also cited the de minimus cases in support of its conclusion.

 

14.   To my knowledge there have been no cases rejecting the legal availability of de minimus in appropriate circumstances. Authority is therefore unanimous, though not substantial, in favour of the doctrine and accordingly, I am prepared to apply it on the facts of this case.

 

15.   The de minimus doctrine is important to the criminal law for a number of reasons – to relieve against overly broad criminal offences that ensnare trivial or unintended violations: see R v Hinchey (1996) 111 CCC 3d 353 (SCC) at P 380-81; to preserve dignity and respect for the administration of justice by not trivializing the important work of the courts; to ensure that scarce time and resources are not wasted.

 

16.   On this latter point it is unconscionable that almost two days was devoted or about to be on devoted to the trial of this complaint while other defendants languish for months in custody or much longer out of custody awaiting trial in this infamously under-resourced jurisdiction that constantly teeters on the brink of another Askov meltdown.