Comment apprécier la défense de minimis non curat lex face à de la violence contre une partenaire intime & le seul cas où cette défense fût retenue en cette matière

R. v. Grizzle, 2024 ONCJ 300

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[69]      Patience and resort to lawful means to resolve a dispute must always be chosen over an act of intimate partner violence. While I agree with Mr. Cotton-O’Brien that the context of the offences must be considered, in my view, the societal values associated with intimate partner violence will almost always preclude the successful application of the defence of de minimis or “consent fight”: see R. v. Carson, 2004 CanLII 21365 (ONCA), at para. 25; Gosselin c. R, 2012 QCCA 1874, at para. 40; R. v. Downey, 2002 NSSC 226, at para. 37.

[70]      That is not to say the defence could never succeed in a case of intimate partner violence. In R. v. R.M., 2024 ONCJ 272, the accused was charged with assault. He removed his wife’s wedding ring from her finger without her consent. He caused her no pain and only had to resort to minimal force: see para. 20. Justice Campitelli viewed this as “trivial in nature” and dismissed the charge: see para. 22.

La défense de minimis non curat lex ne trouve pas application face à un voies de fait contre une partenaire intime

R. v. Downey, 2002 NSSC 226

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[26]   I conclude that the Criminal Code does not specify a minimum level of force that must be applied before an act constitutes an assault. However, I believe that the maxim de minimis non curat lex - “the law does not concern itself with trifles” - may limit the application of the assault provisions. I now turn to the de minimis issue.

 

de minimis non curat lex

[27]   The Respondent suggests that “based on the entire transcript” the learned trial judge found that the force Mr. Downey applied to Ms. Downey was too trifling to constitute an assault. I am unable to agree with this interpretation of his reasons. Had the “trifling”nature of the contact been the basis for his decision, there would have been no reason to go on to consider implied consent. I cannot conclude that the learned trial judge addressed the possible application of de minimis non curat lex. Rather, he decided there was an intentional application of force, but used implied consent to excuse it. As I have stated, the learned trial judge was in error on this point.

 

[28]   The de minimis argument was discussed on appeal. The Respondent alludes to the maxim in its brief while discussing the decision in Stewart, supra. The issue was further canvassed in the appeal hearing. Before deciding whether this is an appropriate situation in which to apply the maxim, I must decide whether it is appropriate for me to consider the application of de minimis to these circumstances.

 

[29]   In R. v. Robart (1997), 1997 NSCA 96 (CanLII), 159 N.S.R. (2d) 243 (C.A.) the Appellant was convicted of assault at trial. During a struggle over a car key, the Appellant pushed and shoved the complainant and wedged himself between her and the steering wheel. The co-accused, Johnson, pulled her from the car and fought with her, leaving her with cuts and bruises. On appeal the Appellant submitted, among other arguments, that his touching of the complainant was trifling and that de minimis non curat lex applied.

 

[30]   Justice Roscoe questioned the practice of raising new defenses on appeal, citing R. v.  Marshall (1997), 1997 NSCA 89 (CanLII), 159 N.S.R. (2d) 186 (C.A.) at paragraph 88. In that decision the Court  endorsed the reasoning of the British Columbia Court of Appeal in R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391 at 398:

An accused must put forward his defenses at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defense that is available, he must abide by that decision. He cannot expect that if he loses on the defense that he has put forward, he can then raise another defense on appeal and seek a new trial to lead the evidence on that defense.

 

[31]   I note that the Court in Vidulich, supra preceded that statement with the observation that

It is perfectly proper to raise a supplementary argument on appeal that was not raised at trial, if the supplementary argument goes to an issue or ground that was itself raised at trial. But it requires leave of the court before an altogether new and independent issue or ground can be raised on appeal that was not raised at trial.

 

[32]   In Robart, supra Justice Roscoe disposed of the de minimis argument, commenting:

One of the difficulties presented with this argument is that it was not raised at the trial. We therefore do not have the benefit of the trial judge’s assessment of the evidence of the nature of and extent of the force exerted by the appellant on the complainant. At trial the issues were whether the injuries suffered by the complainant were caused by Johnson or the appellant and whether the struggle was consensual. In this Court, the appellant emphasizes the evidence that the appellant wedged himself into the seat and that the two struggled for the key but disregards the evidence of the shoving and pushing. The trial judge was not convinced that the appellant caused bodily harm to the complainant, and apparently did not consider whether the appellant was a party to the assault causing bodily harm. It was conceded at the hearing of the appeal that the evidence would support a finding that the actions of the appellant obstructed the complainant with the result that Johnson was able to commit the more serious assault. The totality of the surrounding circumstances of this case clearly distinguish it from those exceptional cases of innocuous behaviour where the de minimis maxim was found to be applicable.

 

 

 

[33]   Justice Roscoe thus decided the de minimis question on the totality of the circumstances, from an unsatisfactory trial record. The failure to raise the defense at trial meant that there was no evidence on the record of the nature and extent of the force exerted by the appellant. In the present matter, however, the nature and extent of the force used was discussed in detail at trial, though, as was the case in Robart, supra, de minimis was not mentioned. 

[34]   On that basis, while repeating Justice Roscoe’s statement that “[t]he practice of raising new defenses on appeal should be discouraged”, I conclude that there is sufficient evidence on the record for me to reach a conclusion on the issue of de minimis. The Respondent’s chief defense at trial was that there was insufficient force for an assault to have taken place. As such, the de minimis argument is not a wholly new one, but is supplementary to the Respondent’s trial defense. It is proper to consider it on appeal.

 

[35]   The leading case on de minimis non curat lex is The “Reward” (1818), 165 E.R. 1482 at 1484, a decision of the High Court of Admiralty, where Lord Stowell said:

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 consequences, 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.

 

[36]   Though there is conflicting case law, the common law defense of de minimis appears to be available in Canadian criminal law, including to a charge of assault. Don Stuart points out in his treatise Canadian Criminal Law (4^th Edn., 2001) that the Supreme Court of Canada has left open the availability of the defense (without deciding) on at least two occasions: see R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128 at 1165, per L’Heureux-Dube J., writing for the majority, and R. v. Cuerrrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371 at 391, per L’Heureux-Dube J., concurring in result.

 

[37]   While there may be good reasons to make the de minimis defense more accessible, I am persuaded by the reasoning of Renaud Prov. J. in Stewart, supra that policy reasons demand a restricted application of the maxim in the context of assaults arising from domestic disputes. I believe this is also consistent with the reasoning in Shand, supra. I cite in particular the following words from Stewart, supra at paragraphs 19-21:

More to the point, Prof. Stuart’s reference to “The Reward”, supra, includes one quite relevant passage: “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.”... One questions how to reconcile the easy acceptance of any form of domestic violence with a philosophy of criminal law that should be devoted to ensuring to all the opportunity to thrive in a community free of all forms of exploitation....

 

[I]t is difficult to reconcile the obvious desire of many commentators, such as Prof. Stuart, to temper the potential harshness of the criminal law by means of a more embracing de minimis doctrine, among other developments, with the day-to-day reality that domestic violence accounts for such a large percentage of trial dockets and appears to exact an overwhelming cost from those who are victimized by it, both individually and collectively.

 

As well, one questions whether the doctrine of de minimis should be available in instances of domestic violence in light of the decision in The Queen v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.) with respect to the availability of the remedy of abuse of process to supervise and regulate the administration of criminal justice. If a prosecution involving an event that is so trivial as to result in the Crown conducting itself “... in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into questions the integrity of the system ...” then it may well be that the Courts must intervene to sanction such an affront of constitutional magnitude to the rights of the individual accused.

 

[38]   I think these comments apply equally to the matter before me. I conclude that de minimis non curat lex is not a defense to a charge of assault involving domestic violence.

Il n'existe aucun consentement implicite entre époux au contact physique durant une algarade

R. v. Downey, 2002 NSSC 226 

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[9]     The Appellant argues that the learned trial judge misdirected himself on the issue of “implied consent” as defined by s. 265(4) of the Criminal Code, which states:

 

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.           

[10]   In R. v. Stewart, [1996] O.J. No. 2704 (Ont. C.J. (Prov. Div.), Renaud Prov. J. discussed “implied consent” in the spousal context at paragraph 26:

 

Little authority is required to sustain the proposition that in modern life, one may subject to all kinds of unwanted physical contact, be it the jostling for position on the subway, the unwanted “glad-handing” of politicians on the “hustings”, et cetera. However, no persuasive argument has been advanced to sustain the submissions that a spouse consents to any form of violence in a domestic argument. Nothing in the decision in R. v. Jobidon ... or subsequent decisions interpreting it appear to countenance such an extension of the law.

 

[11]   In R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, the Supreme Court of Canada held that mutual consent in a fist-fight between adults was vitiated where there is intent to apply force causing serious or non-trivial bodily harm.

[13]   In R. v. Shand (1997), 1997 CanLII 3459 (NS SC), 164 N.S.R. (2d) 252 (S.C.), application for leave to appeal refused, (1998), 1998 NSCA 65 (CanLII), 166 N.S.R. (2d) 74 (C.A.), after pleading guilty to assault, the accused’s husband encouraged her to assault him in turn. As he was getting out of his vehicle she threw rocks at him. Charged with assault, she relied upon the defense of consent. MacDonald J. (as he then was) held that the reasoning in Jobidon was not restricted to barroom brawls. On the contrary, the Court had left open the possibility that the defense of consent could be vitiated on a case-by-case basis. Justice MacDonald wrote, at paragraphs 14 and 20:

 

It is clear to me that the Jobidon ... principle should apply to assaults flowing from domestic violence. If there was ever a need for Canadians to treat each other humanely and with respect it is in the area of domestic disputes....

 

Domestic violence is just too serious a problem to allow consent to be a defense in circumstances such as these. This was a volatile situation which could easily have escalated into something much more serious than one might expect from a barroom brawl.

 

 

[14]   Justice MacDonald concluded that the wife’s actions had the potential to cause severe bodily harm, and consent was vitiated. He commented at paragraph 15:

 

Furthermore I feel the need to deter family violence is so great that the Jobidon principle should be extended so as to vitiate consent where domestic assaults have only the potential of creating non-trivial harm.

 

 

[15]   With respect, I find that the learned trial judge erred in holding that there is an implied consent to physical contact during an argument between spouses. I agree with the reasoning in Stewart, supra to the effect that nothing in Jobidon, supra or subsequent case law supports the proposition that marriage automatically creates such implied consent.

 

[16]   As to actual consent, the Criminal Code, in subsection 265(4), requires that a belief by the accused that the complainant consented can only serve as a defense if the belief is both honest and reasonable. Shand, supra suggests that consent will be vitiated between spouses where the conduct has even the “potential of creating non-trivial harm”.

 

[17]   At trial, the evidence of the complainant was that she did not consent to the Respondent pulling on her coat, and her behaviour, as recounted in her own evidence and that of the Respondent, supports this conclusion. She stated that she repeatedly pulled away and told him she did not want to go with him, in an angry tone of voice. The learned trial judge’s findings of fact bear out this version of events, and the Respondent, on cross-examination, stated that he knew his wife was upset, that she pulled away from him and that he wanted to “calm her down”. Mr. Downey knew his wife was upset and that she did not want to go home with him. With respect, there is little or nothing in the evidence to support an honest and reasonable belief in consent. It was clear that Ms. Downey did not consent.

Comment apprécier l'emploi de la force lors de la pratique d'un sport ''sans contact'' relativement à une accusation de voies de fait

R. v. Adamiec, 2013 MBQB 246

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[42]      Soccer is accepted to be a contact team sport.  While not as violent a sport as rugby, American football, lacrosse, or ice hockey, physical contact is an essential element of soccer and its rules permit contact.  See Brown at pp. 592‑93.  The referee explained in his evidence that extreme forms of physical contact between players are not necessarily contrary to the rules of soccer, let alone beyond its playing culture particularly in a competitive league such as the MMSL.

[44]      According to the evidence of the complainant (an experienced goalkeeper), it is foreseeable that a goalkeeper in a competitive amateur soccer game faces the risk of being stepped on or kicked in a struggle for control of the ball.  It had happened to the complainant many times before the game with Polonia resulting in broken bones and medical attention.

[45]      Such physical contact would be less tolerated in a recreational or developmental league or a league with “no contact” rules.  See R. v. Krzysztofik (G.) (1992), 1992 CanLII 13029 (MB KB), 79 Man. R. (2d) 234 at para. 10 (Q.B.).  However, the evidence before the trial judge was that injuries that would constitute “bodily harm” as defined in section 2 of the Criminal Code occur frequently during play in the MMSL.

[50]      According to the evidence of the referee and Messrs. Sheridan and Heral, which the trial judge accepted, part of Adamiec’s kicking was due to the fact the complainant had grabbed his right leg as part of attempting to grab the ball.

[51]      Struggle for control of the ball is part of the essence of soccer, particularly close to a goal.  In such a competitive setting as was the match here, it cannot be said that players do not consent to the high risk of injury and the potential of receiving reckless force from an opponent in such a struggle for a loose ball in the penalty area proximate to one side’s goal.  Adamiec was quite within his rights under the playing culture of soccer to pursue his scoring chance, particularly as he was being grabbed at the same time by the complainant.

[52]      It is undisputed that the degree of force employed by Adamiec during his kicking was significant.  The injuries of the complainant amounted to “bodily harm” within the meaning of section 2 of the Criminal Code.

[54]      There was no intent to injure the complainant or to use force for anything but a legitimate sporting purpose, albeit done in a manner contrary to the rules of soccer.  Adamiec’s use of force was not motivated by a non-sporting purpose such as an intentional retaliatory attack designed to injure an opponent, as opposed to advance play.  See R. v. Owen, [2004] O.J. No. 1410 (Sup. Ct. J.) (QL).  Again, context is important in consideration of the risk of collision and resulting injury in a 50/50 ball in the course of a potential scoring play.  The evidence before the trial judge was that the risk of serious injury is high in such situations.  This does not excuse Adamiec’s conduct but does place it in the correct frame of reference.  See Owen at para. 70.

[55]      The trial judge erred in law in concluding the Crown negated consent for the purpose of section 265(1)(a) of the Criminal Code.  A proper cumulative consideration of all of the objective criteria applied to the facts as found by the trial judge leads to the conclusion that although the conduct of Adamiec was contrary to the rules of soccer, it was not beyond soccer’s playing culture, let alone gravely so, which is required for sporting misconduct to be a crime.

L’emploi de la force mentionné à l’alinéa 265(1)a) C.cr. n’exige pas nécessairement un élément de puissance ou de violence, mais peut inclure tout acte d’interférence physique non désirée, si minime soit-elle

R. v. Cadden, 1989 CanLII 2847 (BC CA)

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[10]           In s. 244(1) of the Code the term “assault” is used (as it was at common law) to include both an assault and a battery. Section 244(1)(a) refers to activity which would constitute a battery at common law, whilst s. 244(1)(b) is similar to an assault at common law.

[11]           Dealing with battery at common law, Salmond, The Law of Torts, 17 ed., p. 120, states:

The application of force to the person of another without lawful justification amounts to the wrong of battery. This is so, however trivial the amount or nature of the force may be, and even though it neither does nor is intended nor is likely or able to do any manner of harm. Even to touch a person without his consent or some other lawful reason is actionable. Nor is anger or hostility essential to liability: an unwanted kiss may be a battery.

[12]           It is clear from these words that an “application of force” does not necessarily require an exertion of strength or power, but can include any act of unwanted physical interference with the person of another. This point is made by Salmond when he states at p. 5:

The term “forcible” is used in a wide and somewhat unnatural sense to include any act of physical interference with the person … of another. To lay one’s finger on another without lawful justification is as much a forcible injury in the eye of the law, and therefore a trespass, as to beat him with a stick.

[13]           It is because the purpose of the law in this area is to protect the bodily integrity of the individual that even the most trivial inter­ference with another may be actionable. Discussing battery, Fleming, The Law of Torts, 5th ed. (1977), p. 23, states:

Of the various forms of trespass to the person the most common is the tort known as battery, which is committed by intentionally bringing about a harmful or offensive contact with the person of another. The action, therefore, serves the dual purpose of affording protection to the individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity. The insult in being touched without consent has been traditionally regarded as sufficient, even though the interference is only trivial and not attended with actual physical harm.

[14]           Dealing with assault at common law, Fleming states at p. 24: “Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact.” The learned author continues at p. 25:

It is sometimes categorically asserted that some bodily movement is essential to assault: that neither passive inaction nor mere words, however offensive, are sufficient. But this is only true to the extent of restating the overriding requirement that the victim must have apprehended imminent physical contact. For there is neither reason nor authority that the command of motionless highwaymen “Stand and Deliver” would not qualify. Words may also give colour to an act that might otherwise be inoffensive, as where a man follows up an immoral suggestion to a girl by menacingly advancing towards her.

[15]           Linden, The Law of Torts, 3rd. ed., p. 41, is to the same effect.

[16]           Under the Criminal Code, it is clear that words alone cannot amount to an assault because s. 244(1)(b) requires an “act or gesture” by the accused. Further, this act or gesture must amount to an attempt or threat to apply force.

[17]           Counsel for the accused contends that there was no assault committed. He relies upon a line of authorities commencing with the decision in Fairclough v. Whipp, [1951] 2 All E.R. 834 (K.B.), as support for his submission that where the accused merely invites the complainant to commit a sexual act upon him, the accused is not guilty of an assault.

[18]           In Fairclough v. Whipp, supra, the facts were that the accused was charged with committing an indecent assault on a child of the age of nine. The question was whether there was an assault. The accused was “making water” by the bank of a river where there were four young girls varying in age from six to nine. As he did so, one of the girls passed him. He, with his person exposed, said to her, “Touch it” and she did so. He then went away. The question for decision was whether that conduct amounted to an indecent assault. Lord Goddard C.J. said at p. 834:

An assault can be constituted, without there being battery, for instance by a threatening gesture or a threat to use violence against the person, but I do not know any authority which says that where one person invites another person to touch him that can be said to be an assault … I cannot hold that an invitation to somebody to touch the invitor can amount to an assault on the invitee … It seems to me there must be an act done to a person.

[19]           The court concluded no assault had occurred.

[20]           In R. v. Burrows (1951), 35 Cr. App. R. 180 (C.C.A.), the accused was charged with indecent assault on a boy. The evidence of the boy was that the accused exposed himself to him and asked the boy to masturbate him. The boy further said that the accused did not attempt to touch his (the boy’s) private parts. The court concluded that the accused had only invited the boy to touch him. There was no assault because there was no threat or hostile act by the accused against the boy.

[21]           In Director of Public Prosecutions v. Rogers, [1953] 2 All E.R. 644 (Q.B.), the facts were that on two occasions when the accused was alone in the house with his daughter, aged eleven, he put his arm around her shoulders, and led her upstairs and there exposed his person to her and told her to masturbate him. He used no force or compulsion and the child made no objection or resistance. On the second occasion, knowing the nature of his intention, she did not wish to accompany him upstairs, but again she neither objected nor resisted but submitted to his request. It was held that there was no assault on her. Lord Goddard C.J. said at p. 645:

Before you can find that a man has been guilty of an indecent assault, you have to find that he was guilty of an assault, for an indecent assault is an assault accompanied by indecency, and, if it could be shown here that the respondent has done anything towards this child which, by any fair use of language could be called compulsion, or had acted, as I have said in other cases, in a hostile manner toward her—that is, with a threat or a gesture which could be taken as a threat, or by pulling a reluctant child towards him—that would, undoubtedly, be assault, and, if it were accompanied by an act of indecency it would be an indecent assault.

[22]           Following the reasoning in Fairclough v. Whipp, the court held that the father had simply invited the daughter to touch him and this did not constitute an assault.

[23]           The decision in Fairclough v. Whipp has been applied in Canada in R. v. McCallum, 1969 CanLII 1036 (PE SCTD), [1970] 2 C.C.C. 366 (P.E.I.S.C.), and R. v. Baney (1972), 1971 CanLII 513 (ON CA), 6 C.C.C. (2d) 75, [1972] 2 O.R. 34, 17 C.R.N.S. 261 (Ont. C.A.). Based upon these authorities the accused contends that there is no evidence to support a finding that he threatened, by an act or gesture to apply force to any of his victims and that, therefore, he was not guilty of assaulting any of them.

[24]           The authorities cited by counsel for the appellant should be contrasted with another decision of Lord Goddard, made the year after Fairclough v. Whipp. In R.v. Rolfe (1952), 36 Cr. App. R. 4 (C.C.A.), the circumstances were that the complainant was travelling in a train in a compartment in which she was the only passenger when the appellant joined her. While the train was in motion, the appellant undid his trousers and, with his person exposed, came towards her, inviting her “to have connection with him’. Lord Goddard C.J. said at pp. 5-6:

The first thing to observe is this: one can very seldom take some rule which has been laid down in another case and apply it to the case under consider­ation, irrespective of the facts of that particular case. Secondly, the offence of assault is often confused with the offence of battery. An assault can be committed without touching a person. One always thinks of an assault as the giving of a blow to somebody, but that is not necessary. An assault may be constituted by a threat or a hostile act committed towards a person, and if a man indecently exposes himself and walks towards a woman with his person exposed and makes an indecent suggestion to her that, in the opinion of this court, can amount to an assault.

[25]           It is to be observed that unlike the line of cases following the decision in Fairclough v. Whipp, supra, Lord Goddard concluded that the circumstances then before the court, namely, the man indecently exposing himself, walking towards a woman with his person exposed and making an indecent suggestion to her, amounted to an assault. There the court was dealing with a situation which took place within a confined space, with threat­ening behaviour on the part of the man accompanied by words which amounted to an indecent suggestion. Unlike the circum­stances in Fairclough v. Whipp, supra, Lord Goddard did not treat the statement by the man as an invitation, rather he regarded it as an indecent suggestion.

[26]           In the present case, the accused would nod to a student signi­fying that he was to come and get under the desk then the teacher would undo his trousers to expose his penis, lean down and speak to the student or students beneath his desk and tell them to masturbate him or commit fellatio.