Why De Minimis is a Defence: A Reply to Professor Coughlan.

• Author: Fehr, Colton
• Position: Steve Coughlan, Queen's Law Journal, vol. 44, p. 262, 2019

Introduction I. The Absurdity Principle II. Abuse of Process III. Absolute Discharges IV. Constitutional Exemptions V. Conceptualizing the De Minimis Defence Conclusion Introduction

The de minimis non curat lex maxim provides that the law ought not be concerned with "trifle[s]." (1) The principle has two distinct applications in Canadian law. The first employs the absurdity principle of statutory interpretation to confine the applicable scope of a law. (2) This application prevents a plausible interpretation of a law from being adopted if its results could not have been intended by the legislature. (3) The second application invokes de minimis as an excusatory defence to unlawful conduct. (4) De minimis as a defence has yet to be affirmed by the Supreme Court of Canada, (5) though various trial courts have applied the principle in this manner. (6)

In an intriguing article, Steve Coughlan endorses the de minimis principle as an element of the absurdity principle but maintains that de minimis ought not be preserved as a criminal defence. (7) Coughlan thinks that the absurdity principle can be used to avoid convicting people for the vast majority of de minimis conduct. (8) Where it cannot, he suggests that deference be shown to legislatures and de minimis conduct be duly prosecuted unless it would amount to an abuse of process. To conclude otherwise would constitute an unjustifiable intrusion into the prosecutor's discretion to bring charges. (9) For Coughlan, however, the availability of the abuse of process defence obfuscates the need to preserve de minimis as a defence. (10) In addition, Coughlan maintains that the de minimis principle ought not be a defence because its purpose is already served by a particular sentencing tool: an absolute discharge. (11) Finally, he suggests that de minimis ought not be a defence for substantially the same reasons constitutional exemptions are impermissible under the Canadian Charter of Rights and Freedoms. (12)

Coughlan's arguments provide a strong case against preserving the de minimis defence from one of Canada's leading criminal law scholars. (13) Nevertheless, I think he relies on an improper conception of the de minimis principle in rejecting its role as a criminal defence. The de minimis defence does not interfere with the Crown's discretion to bring charges, but instead ensures that judges are not forced to find an accused guilty where it would be inconsistent with the principles of fundamental justice. Put differently, in the rare cases that a judge applies the de minimis defence, it is because the consequences of finding the accused guilty--regardless of the potential to apply a lenient punishment--would be grossly disproportionate to the ability of the law to further its objective in relation to the accused's conduct.

Coughlan's argument that the de minimis defence is unnecessary given existing defences (abuse of process) or sentencing provisions (absolute discharge) also cannot stand up to closer scrutiny. In my view, the de minimis defence is a unique instance of the abuse of process doctrine. As with other defences situated within that doctrine--such as entrapment--the unique context within which the de minimis defence operates leaves adequate conceptual space for it to be recognized as its own defence. As for the availability of absolute discharges, I maintain that there are several potential consequences that distinguish receiving an absolute discharge from being acquitted of a crime outright. Thus, the mere existence of an absolute discharge is not sufficient to render the de minimis defence moot.

Finally, Coughlan's contention that the de minimis defence is analogous to a constitutional exemption is unpersuasive in light of the role of defences in criminal law. Constitutional exemptions are not permitted because they would involve judges rewriting statutes contrary to legislative intent. Although providing an exemption to something like a mandatory minimum sentence--the locus point of the debate about exemptions (14)--unjustly interferes with Parliament's discretion, this is because Parliament did not enact such a provision with any exceptions in mind. Defences exist to ensure broadly drafted laws are not applied in an unduly harsh manner, and legislatures craft offences knowing that defences play this role. The comparison between de minimis as a defence and constitutional exemptions is therefore inapt.

Before proceeding, I should be clear with respect to the scope of my argument. I am discussing the role of de minimis as a defence in criminal law. As such, I make no recommendations with respect to whether de minimis ought to be preserved as a defence in the civil law, where it in fact originated. (15) I limit the scope of my argument because I think the de minimis defence in criminal law takes its shape from the Canadian Charter. The civil law context will typically not engage constitutional interests as is routinely the case with criminal prohibitions. This fact may well result in a different conception of the de minimis defence in civil law, but I have nothing further to say about the role of de minimis in that context.

1. The Absurdity Principle

   The de minimis principle is often traced back to a decision of the English courts commonly cited as The Reward. (16) Writing in 1818, Sir Walter Scott recognized that courts could not properly take on legislative functions and declare a clear breach of the law of no force or effect. In so concluding, however, he also recognized that there are exceptions to this general principle. In Sir Walter Scott's view:

   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. (17) Although Sir Walter Scott identified a general de minimis principle, he also delimited its scope by opining upon the purpose of the principle. His reference to a need to avoid "inflexibly severe penalties" suggests that the de minimis principle was originally concerned with avoiding undue punishment, not a perceived need to restrict the scope of offences. (18)

   The de minimis principle was first applied in the Canadian civil law context in 1932. (19) However, it was not until the mid-twentieth century that it was cited in the Canadian criminal law context. (20) One of the first cases to apply the de minimis principle was the Alberta Supreme Court's decision in R v. Ling. (21) The accused was charged with illegal possession of heroin under the Opium and Narcotic Drug Act. (22) The police discovered the drug after seizing and searching the accused's pants pockets. The heroin found was not detectable by the naked eye and was only discovered "through a number of complicated chemical steps." (23) In acquitting the accused, Justice McBride observed that the prosecution was "asking the court to carry findings to an absurdity." (24) He continued: "I cannot bring myself to the view here, that there was illegal possession of heroin in the contemplation of Parliament, in what otherwise were empty pockets. If Parliament had so intended it would have been a simple matter to have said so explicitly in the Act." (25)

   The Supreme Court of Canada approved of this use of the de minimis principle in Ontario v. Canadian Pacific Ltd. (26) As Justice Gonthier observed, the absurdity principle allows for the consequences of competing interpretations of a statute to be used to "assist the courts in determining the actual meaning intended by the legislature." (27) Citing Elmer Driedger, Justice Gonthier agreed that the absurdity principle may be relied upon to narrow the scope of a statute. (28) As such, he concluded that "[w]here a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature." (29) Citing Sir Walter Scott's reasoning in The Reward, Justice Gonthier explicitly drew a connection between the absurdity principle and the maxim de minimis non curat lex. (30)

   Although the de minimis principle originally delimited the scope of statutes, it was later applied as a defence to a number of offences that clearly prohibited de minimis infractions. The assault offence found in section 265 of the Criminal Code (31)--which Coughlan agrees captures de minimis conduct (32)--is illustrative. That provision criminalizes any "intentional, non-consensual application of force, or the threat thereof." (33) As a result, even a truly trifling act such as a poke on the chest comes within the scope of the assault prohibition. (34) Subsequently, trial courts have applied the de minimis defence to a variety of offences, including theft, (35) obstruction of justice, (36) and breach of trust. (37) In all these cases, however, no court has explained why de minimis was properly transformed from a principle of statutory interpretation to a full-fledged criminal defence.

2. Abuse of Process

   For de minimis to be preserved as a defence, it ought to serve a distinct function in the criminal law. Coughlan maintains that the de minimis defence overlaps with the defence used for ensuring prosecutorial discretion is exercised properly: abuse of process. (38) The Supreme Court of Canada has used a variety of terms to describe an abuse of process. In Krieger v. Law Society of Alberta, (39) the Court described such actions as constituting "flagrant impropriety." (40) Similarly, in R v. Nixon, (41) the Court found that an abuse of process arises where there is evidence demonstrating that the Crown's...