de minimis
Arbour J in her dissent in Canadian Foundation (though not on this point) provides an explanation for what a de minimis defence is, and how it functions.
There are three justifications for usage of a de minimis defence. (1) reserves the application of criminal law to serious misconduct, (2) protects accused from stigma of conviction and severe penalties for relatively trivial conduct, (3) it saves courts from a large number of trivial cases. Justice Arbour states that the theory behind this defense is that there are evils that are targeted by the relevant legislation, and in cases where a de minimis defence exists, that evil has not occurred. She states this is consistent with the dual fundamental purpose of criminal law she identified in her dissenting opinion in Malmo-Levine that there is no culpability for harmless and blameless conduct.
She identifies that the caselaw for de minimis is limited, but suggests this is because it is often not needed as police and prosecutors typically screen all criminal charges and ensure that only the cases deserving to be tried make their way to court. She notes that a judge would be justified in not exclusively relying on prosecutorial discretion to weed out cases undeserving of prosecution and punishment. Good prosecutorial judgement is necessary but not sufficient by itself to ensure the proper operation of the criminal law. Both prosecutorial discretion and discretionary use of the de minimis defense by judges serve the purpose of protecting against convictions for conduct underserving of punishment. “The judicial system is not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of ‘a crime’ (e.g., theft of a penny).”
Summary
de minimis exists as a sort of “stop gap” that can filter out cases undeserving of prosecution that are missed by the prosecutorial discretion “filter”. The cases brought before a judge are not automatically the ones deserving of prosecution, and a judge should retain discretion to reject those cases if they are trivial, trifling, or unworthy of prosecution.
Additionally, an act that meets the technical requirements of a crime but does not contain the “evil” the legislation intended to target, should not be punished. This is consistent with Arbour J’s dissenting opinion in Malmo-Levine that harmless and blameless conduct should not be punished. While the majority rejected this, Malmo-Levine specifically dealt with whether or not the “harm principle” was a principle of fundamental justice under section 7 of the Charter. So that should be a distinguishable fact that allows us to consider Arbour J’s words.
mens rea in Breaches of Conditions
In Zora, the SCC stated thatthe Crown must show beyond reasonable doubt that the accused knowingly or recklessly breached conditions of bail.
In Zora, the SCC states that knowledge of any risk of non-compliance is insufficient to establish recklessness. Rather, accused must be aware (subjective standard?) that their conduct creates a substantial and unjustified risk of condition non-compliance. The SCC notes that this is the standard adopted in Leary v The Queen [1978] 1 SCR 29 at 35 and R v Hamilton [2005] 2 SCR 432 at paras 27-29.
Factors to consider in evaluating the risk include the extent of the risk, nature of the harm, the social value attached to the risk, and the ease with which the risk can be avoided. The risk must not be far fetched, trivial, or de minimis.
This standard of risk is necessary as the offence in question (bail conditions in this case) may criminalize everyday activities and have unforeseen consequences on peoples’ everyday lives.
The Court concludes that proof of mens rea is required to establish guilt of breach of conditions for bail. There is nothing within the text or context of s. 145(3) to suggest that Parliament intended not to apply a subjective MR standard. This is supported by the Court’s jurisprudence on interpretation of breach of probation offences. In Mr. X’s case, there is no indication that section 145(5) of the Criminal Code applies a different standard than s. 145(3). So, proof of mens rea should still be required, ie: did Mr. X knowingly or recklessly breach the conditions of the no contact order by bumping into his ex-wife on Halloween?
Courts across the country have been divided on which standard of mens rea to apply to breach of bail conditions. Alberta has a history of applying varying and modified approaches.
Key part of determining the fault standard to apply in statutory interpretation rests on the presumption that Parliament intends for a crime to have a subjective fault element (cites R v ADH, 2013 SCC 28 and R v Sault Ste Marie, [1978] 2 SCR 1299).
ADH says that the presumption of subjective fault reflects the underlying view that the criminal law should not punish the morally innocent. While not a strict rule, ADH also says that there must be clear and express intent by Parliament to override the subjective fault presumption. Ambiguity regarding the required mens rea means that the subjective fault presumption is not overridden. In Justice Martin’s opinion, section 145(3) does not have wording that clearly overrides the subjective presumption.
Subjective mens rea is proven when the Crown establishes that (1) the accused had knowledge of the conditions they were bound by, or they were wilfully blind to them, (2) the accused knowingly failed to abide by those conditions, and (3) the accused recklessly failed to act according to their bail conditions, meaning the accused knew of a substantial and unjustified risk that their conduct would likely cause them to fail to comply with their conditions and persisted anyways. All three elements must be proven by the Crown.
Justice Kirkpatrick in R v Josephie in the Nunavut Court of Justice says in regards to failure to appear in court “[t]he introduction of an objective fault standard might make for a more efficient criminal justice system, but such a system would not necessarily achieve greater justice. Such efficiency would undermine the philosophical underpinnings upon which the criminal justice system is built. It would confuse society’s rationale for the punishment of crime.”
This decision is referred to by the Alberta Court of Queen’s Bench in recognizing that section 145(5) is not a strict liability offense.
R v Eby involved a breach of probation (s. 733.1) but Judge Allen concluded that sections 145(5) and 733.1 operate in an analogous way. Therefore, his conclusion that a breach of probation order is not proven unless the Crown can demonstrate the accused knowingly acted contrary to the probation order, or was wilfully blind and engaged in conduct contrary to the order; this conclusion should be applied to s. 145(5).
Loutitt lists other cases that interpret s. 145(5) and similar offenses in the same way, R v Mannuel (182 NSR (2d) 193), R v Blazevic (31 OTC 10), R v Custance (2005 MBCA 23), R v Bender (30 CCC (2d) 496), R v Hutchinson (25 WCB (2d) 51), R v Nedlin (2005 NWTTC 11), R v Brown (2008 ABPC 128), R v Stanny (2004 ABPC 149).
I HAVE NOT REVIEWED THESE CASES TO CONFIRM CONTENTS.
R v Antle, 2021 CanLII 93183 (NLPC)
Zora applied, Crown must prove that accused committed the breach knowingly or recklessly. Judge acquitted because evidence didn’t show that he knew that his presence at the door was being requested by police, and that the evidence is insufficient to show that he was reckless in failing to present himself. (at para 5)
R v Yaroslawsky, 2020 BCSC 1239
Zora applied, subjective standard for breach required. Accused in this case was convicted because he clearly knew of the conditions of the order, and attempted to mislead police about the theft of a truck, all while he knew he was under 24-hour house arrest. (at paras 87-88).
R v Eby, 2007 ABPC 81
Judge Allen ruled that subjective mens rea is required.
R v Vidovic, 2013 ABPC 310
Judge Allen indicated that he neglected to include recklessness in his decision in Eby, but still the same requirement of subjective standard.
Summary
Subjective mens rea appears to be required for this offense as there is no express indication that parliament intended to impose a different mens rea standard. This is also not a strict liability offense, therefore mens rea must be proven. The Crown must be able to prove that the accused knew what his conditions were, and knowingly or recklessly acted in noncompliance with them.
1 Canadian Foundation for Children, Youth, and the Law v Canada [Attorney General], 2004 SCC 4 at para 204 [Canadian Foundation].
2 Ibid.
3 Ibid; see also R v Malmo-Levine, 2003 SCC 74 at paras 234-235, 244 (Arbour J Dissenting).
4 Canadian Foundation, supra note 1 at para 203.
5 Ibid at para 200.
6 Ibid.
7 R v Zora, 2020 SCC 14 at para 110.
8 Ibid at para 118.
9 Ibid.
10 Ibid at para 119.
11 Ibid at para 4.
12 Ibid.
13 Ibid at para 31.
14 Cited in ibid at para 32.
15 Cited in ibid at para 33.
16 Ibid at para 33.
17 Ibid at para 35.
18 Ibid at para 109.
19 R v Josephie, 2010 NUCJ 7 at para 24.
20 Cited in R v Loutitt, 2011 ABQB 545 at para 7.
21 2007 ABPC 81.
22 Ibid at para 12.