Why De Minimis Should Not Be a Defence.

• Author: Coughlan, Steve
• Position: Canada

Introduction

1. De Minimis: The Issue Explained

2. The Case for De Minimis (Rebutted)

3. The Case Against De Minimis Conclusion

   Introduction

   Don Stuart is the Dean of Canadian criminal law academics.

   How do you talk about the contributions of the man who literally wrote the book on substantive criminal law (Learning Canadian Criminal Law, now in its 14th edition), on criminal procedure (Learning Canadian Criminal Procedure, now in its 12th edition) and on evidence (Evidence: Principles and Problems, now in its 12th edition)? Not to forget as well Canadian Criminal Law: A Treatise (now in its 7th edition) and Charter Justice in Canadian Criminal Law (also in its 7th edition). There can be very few criminal law scholars in Canada today who did not--like me--learn at least one of those subjects from a text written by Don.

   And it is not just academics who have benefited from Don's work. As the Editor-in-Chief, for decades, of the Criminal Reports and of the National Judicial Institute's Criminal Law Essentials e-Letter, Don has written a great deal that has been readily available to practitioners and the judiciary, and it has been frequently made use of.

   Where Don has written so much, about so much, it becomes difficult to decide what topic to focus on in a paper meant to honour him. In an attempt to narrow down the range of possibilities, I decided to look only at Supreme Court of Canada decisions, to see when they had cited him. That was instructive but not helpful: it turns out that the list of areas where the Supreme Court of Canada has relied on Don's work includes subjective fault, objective fault, general versus specific intent, motive, recklessness, wilful blindness, legal duties, predicate offences, consent, causation, the simultaneity principle, constructive murder, dangerous driving, sexual assault, criminal negligence, child luring, party liability, attempts, conspiracy, corporate criminal liability, the presumption of innocence, burden of proof, the role of common law, the principle of legality, vagueness, the air of reality test, self-defence, duress, provocation, officially induced error, entrapment, intoxication, automatism, mental disorder, the right to silence, the doctrine of recent possession, hearsay, Vetrovec warnings, cross-examination on prior testimony, exclusion of evidence, jurisdiction over remedies under the Canadian Charter of Rights and Freedoms, (1) the requirement to give reasons, corporal punishment, non-retrospectivity of punishment, proportionality in sentencing, double jeopardy, police powers, interrogations, arrest powers, bail, search incident to arrest, searches of lawyers' offices, and searches in the school setting. No one else comes even remotely close to having been cited by the Court so often in criminal law matters.

   Another thing to know about Don--and a thing which anyone who has met him will know--is that he is passionate about ideas. If he thinks something is right, he will defend the notion that it is right, and if he thinks it is wrong, he will staunchly and unambiguously oppose it: the expression "make no bones about it" might have been coined with Don in mind. I fondly recall attending the ceremony where Don was presented with the 2012 G. Arthur Martin Criminal Justice Medal by the Criminal Lawyers' Association, and listening to his acceptance speech in which he berated the lawyers assembled to honour him (I am sure he did not think of it as berating) for not reading enough work by academics. Personally, I find this forthrightness on his part valuable and refreshing: when Don praises someone (and as they say, "praise from Caesar is praise indeed"), you can be certain it is motivated by absolutely nothing but his high opinion.

   However, despite his passion, Don is entirely devoid of any personal animosity: he never makes the mistake of confusing the person with the idea, and his disagreement with an opinion about a criminal law matter has no relation to his view of the person holding that opinion. Indeed, more than that, Don is as fair-minded as one could ask: having co-authored a number of things with him, I can say that he is always concerned to see to it that the views of those who hold a differing view from him are given space. Many, indeed once again probably most, Canadian criminal law scholars have been helped by Don somewhere along the way.

   Another key feature of Don's approach to the law is to be constructive. He has noted more than once that it is easy for us as academics to sit back and point out when things were done wrong, but it is much harder to be the person who has to try to do things right. Don's view is that academics should contribute to the development of the law by putting forward positive proposals, not just criticize what others have done. It was that attitude which led him to organize a conference of a very large number of academics from across the country, leading to the publication of Towards a Clear and Just Criminal Law, a collection of essays putting forward specific proposals about how to reform and improve every aspect of the criminal justice system. (2)

   Which leads, finally, to my choice of topic for this paper. Don and I agree about many things, but not all, and it seemed appropriate here to choose one of those topics about which we disagree. Further, it needed to be a topic where it was useful to make specific proposals with regard to how the law should behave, not merely criticize the status quo. Accordingly, this paper will address the maxim "de minimis non curat lex": the law does not concern itself with trifles. Don's view is that de minimis should be available as a defence in criminal proceedings, although he acknowledges that "general authority for the maxim in criminal law is, at best, sketchy". (3) My view is that no such defence ought to exist in Canadian criminal law, and so this paper is intended to show why Don is mistaken. The proper approach for the law--when this point does get settled--is to reject such a defence.

1. De Minimis. The Issue Explained

   The de minimis defence is what I like to think of as a "ghost" defence at the moment: it is occasionally sighted (and cited) but has not been proven to exist. Some trial courts have rejected the defence as not applicable in the criminal justice system, while others have applied it. (4) Sometimes courts have considered whether it applies to, or is excluded from application to, particular offences. (5) A typical approach of courts of appeal has been to find that if the defence did exist it was not made out on the facts of the case, and therefore that it was not necessary to decide whether the defence actually existed. (6) The Supreme Court of Canada has not authoritatively pronounced on the defence, though occasionally in obiter it has been referred to without being explicitly rejected, or even as though it might exist. (7) Whether de minimis actually exists as a rule within the criminal justice system, therefore, is unsettled.

   We should begin by setting out exactly what is at issue here. The rule "de minimis non curat lex" is almost exclusively referred to in its Latin form (presumably because, as is well-known, the use of Latin "causes little difficulty for lawyers and judges" (8)), and translates into English as "the law does not concern itself with trifles". In its origin it is a private law rule, meant to be of significance primarily to contract law. It is the notion that, for example, if a contracted shipment of thousands of pounds of some item is short by a few ounces, this will not be seen as a breach of the contract: in essence, some failures to live up to an agreement are so trivial as not to be worth worrying about. The most apt private law example imaginable concerning a rule about "trifles" is Joe Lowe Food Products Co v JA & P Holland Ltd, which applied the rule in a case concerning some lumps in a shipment of dessert powder. (9)

   I do not propose to discuss whether the rule fits well in a private law context. (10) However, I do argue that it is not a rule which should be transferred to the criminal law sphere: specifically, de minimis ought not to be available as a defence to a criminal charge.

   It is important from the start to draw a distinction here. The purported "defence" of de minimis would allow a judge to make an exception to what would otherwise be criminal liability. That is, just as a person might be found to have committed assault but be acquitted based on self-defence, creating a defence of de minimis would allow a judge to say that the accused has committed an offence but should be acquitted nonetheless. A judge could conclude that the accused had committed an assault but such a minor one that the defence should succeed, (11) or had stolen something but of such small value that she should not be convicted, (12) or possessed contraband but in such small quantity that he should be acquitted. (13) As Don has put it, a defence of de minimis would be a "dispensing power". (14)

   Importantly, that is not the only potential use of the de minimis concept. There is a significant difference between using de minimis as a defence and simply using it as an interpretive aid. Don has argued, for example, in his temperately titled "The Charter Is a Vital Living Tree Not a Weed to Be Stunted: Justice Moldaver Has Overstated" that:

   The most surprising aspect of the judgment [R v Boulanger] is the Court's determination that the accused should have been acquitted because the conduct lacked the level of seriousness required for the offence... The Boulanger decision is now authority for applying this principle of restraint to the actus reus component. It appears to be saying judges can acquit if they decide that the conduct was trivial. This has the look of the doctrine of de minimis non curat lex not previously endorsed by the Supreme Court. The Chief Justice is certainly and commendably on a roll in leading the Court to interpreting criminal offences...