What is a de minimis defence?

A de minimis defence, meaning a defence of “too minor” is a defence that can be raised in certain situations where an offender meets the technical definition of a crime, but because the actions were so minor, they don’t warrant prosecution. In Canadian criminal law, de minimis has been invoked rarely. The general translation of the phrase de minimis no curat lex is “the law does not care about the little things without importance”. The de minimis defence ensures that minor events actions that we take part in every day, which may technically be crimes, do not clog the justice system and unnecessarily infringe on our liberties.

In a recent Quebec case, the defence of de minimis was raised when the accused (an inmate leaving jail) lightly pushed the shoulder of the victim (a correctional officer leaving work) four times in public, apparently to greet the officer. The accused was charged with assaulting the officer. On appeal, the Quebec Court of Appeal rejected the accused’s argument that the trial judge did not give weight to the de minimis defence and noted that the trial judge correctly considered the context of the events surrounding pushing the officer’s shoulders and denied the defence’s viability. In that case, the trial judge noted that the accused seemed to behave aggressively and that the complainant did not have any ulterior motive when claiming that the accused assaulted her.

In what cases can I use a de minimis defence?

The following cases show the circumstances where a de minimis defence may be successful:

The de minimis defence is available for all offences in the Criminal Code though the defence only works if there is an air of reality to it. There are also scenarios where a de minimis defence would be challenging to raise such as in cases of domestic assault. Like in the Quebec case, courts are reluctant to allow this defence in cases involving any violence. Likewise, the defence was unsuccessfully raised in a drunk driving case where the blood alcohol reading was one milligram above the threshold for prosecution. Instead, whether this defence would work for a particular crime is largely an open question for courts to consider and it is often done on a case by case basis.

In the cases where a de minimis defence is not used in a trial, it could potentially be raised in other stages of the criminal process, such as during a crown pre-trial (CPT) or the judicial pre-trial (JPT). In these meetings, your attorney may be able to bring up the minimal nature of the offence and ask for your charges to be withdrawn.

Lakin Afolabi Law is a multilingual, empathetic, and extremely skilled law firm at defending all types of criminal charges. When it comes to defending criminal charges, we understand what’s at stake and will consider every strategy available to help you get a favourable outcome. If you are facing criminal charges, talk to us today to see how we can help.