R. c. Freedman, 2006 QCCQ 1855 (CanLII)
[39] The case law and doctrine clearly establish that the maxim was and is used in non-criminal matters. In criminal law, it is presumed to exist although the extent of it has yet to be defined by the Courts.
[40] For instance, L'Heureux-Dubé J. mentioned the principle in R. v. Hinchey, without deciding if and how it applied in Canadian criminal Law:
¶ 69 In my view, this interpretation removes the possibility that the section will trap trivial and unintended violations. Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where an accused has "technically" violated a Code section has been proposed by the Canadian Bar Assocation, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that 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.
[41] In Canadian Foundation, Arbour J. qualified the case law of “somewhat unsatisfactory” and recognized that a codification project “may cure judicial reluctance to rely on de minimis; however, the common law defence of de minimis, as preserved under s. 8(3) of the Code, is sufficient to prevent parents and others from being exposed to harsh criminal sanctions for trivial infractions.” . Arbour J. went on to suggest that the “appropriate expansion in the use of the de minimis defence — not unlike the development of the doctrine of abuse of process — would assist in ensuring that mere technical violations of the assault provisions of the Code that ought not to attract criminal sanctions are stayed.” But whether or not to apply the doctrine is definitely an exercise of judicial discretion.
[42] In the seminal case of The "Reward", all that was said about it is the following:
"This Court cannot take on itself legislative functions: it must administer the law as it stands; certainly with such qualifications as the law permits. The Court is not bound to a strictness at once harsh and pedantic in the application of the statutes. The law permits the qualification implied in the ancient maxim 'de minimis non curat lex'. Where there are irregularities of a 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 weight little or nothing on the public interest, it might be overlooked."
[43] The Supreme Court does offer very limited guidance on the issue. Again, L'Heureux-Dubé J. in R. v. Cuerrier was of opinion that the principle of de minimis non curat lex, might apply to prevent or stop prosecuting innocent conduct.
[44] In Canadian Foundation, Arbour J. pointed out that:
In effect, the defence is that there was only a "technical" commission of the actus reus and that "the conduct fell within the words of an offence description but was too trivial to fall within the range of wrongs which the description was designed to cover" (E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 100). The defence of de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished (S. A. Strauss, "Book Review of South African Criminal Law and Procedure by E. Mr. Burchell, J. S. Wylie and P. Mr. A. Hunt" (1970), 87 So. Afr. L.J. 471, at p. 483).
[45] In R. v. Elek, Faulkner J. held that "a much better way to approach the task is to ask whether or not the conduct of the accused is sufficiently serious that it should properly be stigmatized as criminal", and he would thus go a step further and apply the doctrine to non-trifling matters .
[46] Commenting on R. v. Hinchey , the Ontario Court of Appeal described the defence in the following terms: "This principle seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest." It was thus referring to the analogy made by Doherty J. in R. v. Murdock, where a parallel is drawn between the de minimis defence and the harm principle as a principle of fundamental justice
[60] In my opinion, a Court should, without limitation, consider the following factors: 1) the defendant's character, 2) the nature of the proven offence, 3) the circumstances surrounding the proven offence, including, if any, the accused's motive, 4) the circumstances surrounding the laying of the charge, including if any, the plaintiff's motive, 5) the actual harm caused by the offence, 6) the specific objective, if any, intended to be achieved by the legislature when it enacted the provision and 7) the public interest.
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