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International Law: Criminal Review
Is there a de minimis defence available in assault cases?
Is there a de minimis defence to assault under Canadian law?
Actually the question might be asked what status such a defence (its name comes from the latin tag de minimis non curat lex: the law does not concern itself with trifles) has to any criminal offence in this country. But in a pair of recent decisions it has come up in the context of assault so that’s what I’ll look at here.
It might seem a defence ill-suited to a charge of assault, but in fact common assault covers a very wide range of behaviour, at least some of which could be considered trivial. In the case of Chapman the accused was at a native land claims rally and (videotape evidence showed) shoved a Mr. Sywyk.
The video shows Ms. Chapman looking at Mr. Sywyk. She was clearly upset. She takes two or three quick steps towards Mr. Sywyk, extending her left arm towards him in an obvious pushing motion. It was to my mind, a push or a shove and not a punch. Mr. Sywyk testified that he was not hurt or injured by this. The layers of clothing he was wearing absorbed much of the impact but it was of sufficient force that it caused him to step back.
Unfortunately, after a helpful review of provincial case law, Justice D. A. Harris did not pronounce on the question of whether the defence of de minimis would be valid in such a situation (emphasis added).
Neither the Supreme Court of Canada nor the Ontario Court of Appeal has conclusively ruled that the maxim de minimis non curat lex applies to criminal law in Canada. I do not propose to decide that issue here. Nor do I need to. Even if the maxim may be applied in appropriate cases, this is not one of those cases.
Ruth Ann Chapman found herself in an extremely tense and volatile situation. There were more than 100 people present and many of these had already started taking sides in what was shaping up to become an ugly confrontation. The police were impossibly outnumbered and were straining to maintain order. It was under these circumstances that she lost her temper with regard to Mr. Sywyk, moved quickly up to him and intentionally shoved him on the chest, causing him to step back. This was not incidental contact or jostling. It was a deliberate act, an intentional application of force without the consent of Mr. Sywyk. It was done without any consideration of its possible consequences. Fortunately, neither Mr. Sywyk, nor anyone else retaliated. Had that happened, events could have quickly degenerated even further than they did that day.
Ms. Chapman is a small woman who has lived many years without breaking the law. However, when I consider all of the circumstances present in this case, I cannot classify the intentional use of force as a trivial act, no matter who was applying that force.
On the face of it this would seem to suggest that the defence can never be available to a charge of assault: “I cannot classify the intentional use of force as a trivial act, no matter who was applying that force.” Or, one assumes from this, no matter how trivial the force in question was.
Another decision, this time from the Nova Scotia Court of Appeal, also raises the question without providing an answer.
In R. H. L. the accused, a young person with an attitude problem was charged with assaulting a police officer engaged in the execution of his duty. After being arrested, handcuffed, and brought to jail he jostled or pushed against a police officer (the accused suggested they only “brushed shoulders”). Neither the trial judge nor the Court of Appeal (obviously a harder sell than the Ontario Court of Appeal on such matters) bought the argument that this was “accidental contact,” but a de minimis argument was at least considered:
Given the trial judge?s findings that R.H.L. had let his emotions get the better of him, that he was ?. . . likely . . . combative and argumentative and surly? and ?. . . quite upset . . .? at the police station, and that ?. . . there is no issue . . . there was contact . . . the issue is the degree of contact? one can reasonably infer Judge Williams concluded that R.H.L.?s deliberate contact with the police officer came about as R.H.L. ignored the instructions of the arresting officer, and attempted to take a seat on the bench that R.H.L. preferred. In the context of these findings Judge Williams obviously felt that the principle of de minimis had no application. The SCAC [Summary Conviction Appeal Court] judge instructed himself as to the law (assuming without deciding that the principle might still pertain to the current criminal law relating to assault in Canada) and made no error in concluding as he did that:
The trial judge?s findings were that it was an intentional application of force. Although it may not have been, as she said, ?push of the century? the application of force was sufficient to constitute the offence.
I also find that the principle of de minimis non curat lex is of no application here because the evidence does not support such a finding.
Once again the question of whether the principle pertains to assault in Canada is left for another day, though we see the question that is emphasized is whether the amount of force employed was sufficient to constitute the offence. Does that, in turn, make the defence dependent on who does the shoving (”Ms. Chapman is a small woman”), or who is being shoved (”given the fact that [Constable] Rudderham was larger than R.H.L., R.H.L. basically bounced off of him”)? Is the triviality, in other words, one of force or effect, the act or its consequence?
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