Vauclair, Hamilton, Cournoyer

Application for leave to appeal from a conviction. Granted. Appeal from a conviction. Dismissed.

The appellant was convicted of one count of assault against a corrections officer. They had previously crossed paths in prison, and the appellant recognized the officer in a metro station. While the victim was walking along the platform, the appellant approached her and hit or [translation] “jabbed” her four times in the shoulder. He argues that the trial judge erred in dismissing his explanation that his act was intended as friendly and non-hostile and in refusing to apply the maxim de minimis non curat lex.

The images recorded by surveillance cameras and the testimony support the judge’s conclusions with respect to the intentional application of force by the appellant and the absence of the victim’s consent or the appellant’s belief in such consent. The appellant did not establish an error justifying the intervention of this Court.

The maxim de minimis non curat lex seeks to express the idea that a court can accept a “defence” in a case where the offence, although legally committed, is insignificant and should not lead to consequences for the perpetrator. This doctrine remains exceptional, meaning that it applies only in the clearest and most obvious cases. It was confirmed that it may be applied in criminal law in R. v. Freedman (Sup. Ct., 2006-09-28), 2006 QCCS 8022, SOQUIJ AZ-50515144. In this case, it is not necessary to rule on its existence or to definitively define it. The possibility of relying on this maxim has never been totally rejected by a court of appeal or by the Supreme Court of Canada. On the contrary, there are signs indicating that it can play a role in the administration of criminal justice. The maxim can maintain confidence in the administration of justice, but it can have the opposite effect if it is applied without a serious assessment of all the circumstances.  

A contextual analysis led the judge to reject the maxim. Relying on the video evidence and the victim’s reaction, she accepted that the hits were delivered in an unexpected attack, in a context of hostility and aggression. She also concluded that it was difficult to determine a motive for the appellant’s act and that the victim did not appear to be motivated by an [translation] “ulterior motive”. There is no error in this conclusion.

Text of the decision: http://citoyens.soquij.qc.ca