DATE: 20040826

DOCKET: C39029

COURT OF APPEAL FOR ONTARIO

CATZMAN, WEILER and MacPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Jamie C. Klukach

for the appellant

Applicant (Appellant)

• and -

ERIKA KUBASSEK

Anthony DeMarco

for the respondent

Respondent

Heard: June 17 and 18, 2004

On appeal from the judgment of Justice Peter A. Grossi of the Superior Court of Justice, sitting as a summary conviction appeal judge on October 9, 2002 affirming the judgment of Justice William B. Horkins of the Ontario Court of Justice dated January 22, 2002.

CATZMAN J.A.:

The background

[1] In Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161, this court held that the common law definition of marriage as a union between a man and a woman violated the Canadian Charter of Rights and Freedoms and that it should be reformulated as “the voluntary union for life of two persons to the exclusion of all others”. The result was that, in Ontario, same-sex couples were entitled to marry.

[2] One of the parties to the proceedings in Halpern was the Metropolitan Community Church, whose senior pastor, Rev. Brent Hawkes, had published the banns of marriage for two same-sex couples on three consecutive Sundays and officiated at their weddings on January 14, 2001. The two couples whose marriage he celebrated were also parties to the proceedings in Halpern.

[3] Erica Kubassek holds very strong views about same-sex marriages. She considers such marriages to be a falling away from God’s truth. She believes herself to be a Christian servant of the Lord, endowed with the spiritual gifts of revelation and prophesy.

[4] The Metropolitan Community Church had announced that the two same-sex marriages referred to above would be celebrated on Sunday afternoon, January 14, 2001. That Sunday morning, Ms. Kubassek, who was not a congregant of the Metropolitan Community Church, believed that she received a message from the Lord to go to the church, there to speak out for truth and to explain the word of the Lord. She drove from her home in Cambridge to Toronto, where she attended the church’s 11:00 a.m. Sunday morning service. At a point in the service when Rev. Hawkes asked the congregation to come forward for anointing for healing, she went to the front, turned around and began to address the congregation. She quoted scripture, saying that homosexuality was an abomination and a sin in God’s eyes. Rev. Hawkes went around her, faced her with his back to the congregation and asked her to stop. In response, she pushed or shoved him with her right hand. As a result, Rev. Hawkes stumbled backwards, towards the congregation, and almost fell over a pew that was two or three feet behind him. He did not fall and he was not injured in the incident. He turned to the congregation and asked everyone to sing. A security officer escorted Ms. Kubassek, who was screaming and throwing biblical pamphlets in the air, out of the church.

[5] Ms. Kubassek was charged with assault. The trial judge found that she had intended to push Rev. Hawkes, but he dismissed the charge against her on the basis of the principle de minimis non curat lex: the law does not concern itself with trifles. The Crown appealed her acquittal to the summary conviction appeal court. The summary conviction appeal court judge agreed that the push had been intentional, but concurred with the trial judge that the de minimis principle applied. He affirmed Ms. Kubassek’s acquittal.

[6] The Crown now seeks leave to appeal and, if granted, to appeal from the decision of the summary conviction appeal court. For the reasons that follow, I would grant leave, allow the appeal, enter a finding of guilt and direct an absolute discharge.

The trial judge

[7] At the conclusion of the trial, Horkins J. gave oral reasons for judgment. In his reasons, he made the following findings:

• Ms. Kubassek did not go to the church with the intention of assaulting anybody, but felt compelled by her beliefs to go there and do something;
• she did not know what she was going to do until the opening presented itself, when people were invited by Rev. Hawkes to come to the front;
• Ms. Kubassek went to the front of the church, turned to the congregation and began to speak. Rev. Hawkes turned towards her, palms out at waist level, and said something to the effect of “This is a church service”, asking her not to disrupt what was going on;
• Ms. Kubassek took her right hand and shoved Rev. Hawkes, as a result of which Rev. Hawkes almost tripped and fell backwards;
• the push that was delivered was intentional;
• Ms. Kubassek intentionally pushed Rev. Hawkes to the side so that she could finish with what she had to say to the congregation;
• her decision to go up to the front of the congregation and preach to them in terms that she knew would be offensive went beyond the terms of the implied invitation to be there, and she could fully expect it to cause a disturbance; and
• the contact was extremely brief, it was transient and there were no injuries.

[8] The trial judge referred to what he described as “the de minimis issue”. In his view, “a voluntary but incidental contact that is ‘trifling’ … may not be a criminal assault”. He held that, while Ms. Kubassek’s conduct was “rude” and “offensive” and “definitely the wrong thing to do”, it was “‘trifling’ in the larger scheme of criminal conduct” … “incidental and of such a minor degree that, in the particular circumstances of this case, there can not be a finding of criminal liability”.

[9] He therefore dismissed the charge.

The summary conviction appeal court

[10] The Crown appealed the respondent’s acquittal to the summary conviction appeal court. Grossi J. gave brief reasons dismissing the Crown’s appeal. He noted that the trial judge had found that there was an assault and that it was intentional. He recorded his view that the trial judge had “considered the circumstances from a practical aspect and approached the situation on a common sense basis”. He concluded, at para. 3:

After considering all of these factors [the trial judge] applied the principle of de minimis. He carefully considered the cases dealing with this principle and in my view applied them correctly to the present situation. The appeal should be dismissed.

“Trifling”: a question of law alone?

[11] On the argument, the issue arose whether an inquiry into the question of the applicability of the principle of de minimis non curat lex in this case was “a question of law alone” within s. 839(1)(a) of the Criminal Code and whether the determination of that question falls within the jurisdiction conferred upon this court by that section.

[12] I am of the view that the issue raised is a question of law alone and that this court has jurisdiction to determine it. The facts that appear in these reasons are uncontroverted. They are taken from evidence of Ms. Kubassek and from the findings of fact made by the trial judge and adopted by the summary conviction appeal court judge. The correctness of the label that was attached to her conduct raises a question of law within the meaning of s. 839(1) of the Criminal Code.

[13] Recent cases in both the Supreme Court of Canada and this court have made clear that the application of a legal principle to undisputed facts raises a question of law that an appellate court has jurisdiction to review. In R. v. Mara, [1997] 2 S.C.R. 630, Sopinka J. said, at paras. 18-19:

¶ 18 The Crown may only appeal an acquittal on a question of law alone. I will consider the jurisdictional issue with respect to the appellant Mara’s mental state below, but will consider here the appellants’ submission that reviewing the trial judge’s finding on indecency does not involve a question of law alone, and that therefore the Court of Appeal erred in conducting such a review. In my view, the question of whether a given set of facts gives rise to a finding of indecency is a question of law. This conclusion is consistent with the principles set out in case law on the general issue of when a question of law arises, and is consistent with this Court’s specific treatment of indecency and similar charges.

¶ 19 R. v. Morin, [1992] 3 S.C.R. 286, elaborated on the reasoning in R. v. B. (G.), [1990] 2 S.C.R. 57, as to when questions of law arise in assessing findings of fact by a trial judge. I stated for the Court at p. 294:

If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a Court of Appeal can disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law and not the facts or inferences to be drawn from the facts. The same reasoning applies if the facts are accepted or not in dispute. In this situation, the court can arrive at the correct conclusion in law without ordering a new trial because factual issues have been settled.

[14] To the same effect, in rejecting the argument that the question of the applicability of the legal standard of investigative necessity did not raise a question of law alone, LeBel J. said in R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at paras. 17-18:

¶ 17 Before considering the central issues in this appeal, a preliminary argument must be addressed. The appellants have argued that the Crown’s appeal to the British Columbia Court of Appeal did not raise a question of law and that, therefore, the Court of Appeal did not have jurisdiction under s. 676(1)(a) of the Code to hear the appeal.

¶ 18 It is clear that this argument must fail. The interpretation of a legal standard has always been recognized as a question of law: R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 21. Moreover, our Court has recently recognized that if a question is about the application of a legal standard, that is enough to make it a question of law: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 23. In the case before us, the Court of Appeal examined the combined interpretation and application of the legal standard of investigative necessity. It also discussed the interpretation and application of the standard of review for a judge reviewing a wiretap authorization. There is no question that the Court of Appeal was dealing with questions of law. Thus, there was no jurisdictional bar to the Crown’s appeal.

[15] Araujo was, in turn, relied on in a recent decision of this court as authority for the proposition that the application of a legal test (reasonable apprehension of bias) to the facts of a case raises a question of law alone. In R. v. Brown (2003), 173 C.C.C. (3d) 23, Morden J.A. said, at para. 40:

¶ 40 The jurisdiction of the court to hear the appeal is dependent on the appeal being based on a question of law alone (Criminal Code, s. 839(1)). The respondent, in raising no jurisdictional objection, accepts, correctly in my view, that the appeal is based on a question of law alone. The application of the legal test for reasonable apprehension of bias to the facts in this case involves a question of law: R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.) at para. 23; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449) at para. 18; and see, generally, Mureinik, “The Application of Rule: Law or Fact?” (1982), 98 L.Q.R. 587. Accordingly, the standard of review is that of correctness: Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.) at paras. 8 and 9. This means that if our view is different from that of the appeal judge on the application of the test for reasonable apprehension of bias, it is our duty to substitute our conclusion for his.

[16] I therefore conclude that the court has jurisdiction on this appeal to canvass the question whether, assuming that the principle of de minimis non curat lex is a defence to criminal culpability, the summary conviction appeal court judge erred in law in concluding that the trial judge correctly applied that principle in acquitting the respondent.

de minimis non curat lex

[17] The Crown’s position on this appeal reduces itself to two basic submissions. The first is that the principle de minimis non curat lex has no application as a defence in criminal law. The second is that, even if can be raised as a defence in criminal proceedings, the principle was not available in the circumstances of this case.

[18] I agree with the Crown’s second submission and do not find it necessary to decide the first.

[19] The principle de minimis non curat lex is of considerable antiquity. The first record of the principle in the law reports is found in Taverner v. Dominum Cromwell (1594), 78 E.R. 601. Over two centuries later, the meaning of the expression was amplified in a case involving the seizure of a British ship for breach of British revenue laws by exporting logwood from Jamaica to the United States, which prohibited its importation: The Reward (1818), 2 Dods. 265, 165 E.R. 1482. In rejecting an invitation by the owners of the ship to reverse its condemnation because of the relative insignificance of the amount of logwood in issue, Sir Walter Scott (later Lord Stowell) said, at 269-270 Dods., 1484 E.R.:

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 consequence, 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.

[20] Within the last decade, the Supreme Court of Canada has touched upon, but not resolved, the question whether the de minimis principle provides a defence to a criminal charge. In R. v. Hinchey (1996), 111 C.C.C. (3d) 353 (S.C.C.), which involved a charge of corruption of a government employee, L’Heureux-Dubé J., writing for the majority of the Court, acknowledged the possibility that the de minimis principle might operate as a defence to criminal culpability, but specifically left the question open. She said in obiter, at para.69[^1]:

[A]ssuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that “the law does not concern itself with trifles”. This type of solution to cases where an accused has “technically” violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability (Ottawa: The Association, 1992), and others: see Professor Stuart, Canadian Criminal Law, 3rd ed. (Scarborough, Ont.: Carswell, 1995) at pp. 542-46. I am aware, however, that this principle’s potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.

[21] In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004), 2004 SCC 4, 180 C.C.C. (3d) 353, the Supreme Court upheld the constitutionality of s. 43 of the Criminal Code, which provided that schoolteachers, parents or persons standing in the place of a parent were justified in using force by way of correction of a child under their care if the force did not exceed what was reasonable in the circumstances. The decision of the majority was rendered by McLachlin C.J.C. Binnie, Arbour and Deschamps JJ. each wrote dissenting reasons. In Arbour J.’s dissent, she expressed the view that de minimis non curat lex does exist as a common law defence: see paras. 200-208. But all that McLachlin C.J.C., speaking for the majority of the Court, said on the subject, at para. 44, was:

Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and “de minimis”. The defence of necessity, I agree, is available, but only in situations where corrective force is not in issue, like saving a child from imminent danger. As for the defence of de minimis, it is equally or more vague and difficult in application than the reasonableness defence offered by s. 43.

[22] Like L’Heureux-Dubé J. in Hinchey and McLachlin C.J.C. in Canadian Foundation, I do not find it necessary to determine in the present case whether the de minimis principle operates as a defence in criminal law. I say that because even assuming, for the purpose of disposition of this appeal, that it does, the application of the label “trifling” to Ms. Kubassek’s conduct constituted an error of law that is amenable to correction by this court.

The present case

[23] In reaching the conclusion that Ms. Kubassek’s conduct was not trivial, I have considered both the assault itself and the context in which it took place.

[24] Ms. Kubassek’s act of pushing or shoving Rev. Hawkes was intentional. Although he suffered no injury, he did fall backwards and almost tripped over a pew that was behind him. It is instructive to recall the circumstances in which the assault took place. The respondent chose to come to Metropolitan Community Church that Sunday morning. She chose to come to the front of the church for a purpose unconnected with the invitation extended to the congregation. She chose to deliver a message that she knew would fall on unreceptive ears. She chose to ignore the request of the senior pastor of the church not to interrupt the service. She chose to push or shove him to the side so that she could finish what she had to say. That he tripped, but did not fall or suffer injury, was purely fortuitous. She could fully have expected (as the trial judge found) that to go up to the front and preach to the congregants in terms she knew would be offensive could cause a disturbance. Against this backdrop, the push or shove that she intentionally applied to Rev. Hawkes cannot appropriately be characterized as an “irregularit[y] of very slight consequence … a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest”[^2]. To minimize the assault by ascribing to it the designation “trifling” or “trivial” is to ignore the realities of what transpired between Ms. Kubassek and Rev. Hawkes that Sunday morning.

[25] In the result, I conclude that the facts in the present case cannot be said to fall within the ambit of the defence (assuming it to be a defence available at law) of de minimis non curat lex and that the Crown’s appeal must succeed.

Disposition

[26] During the course of the argument, the court suggested to counsel that, if the Crown’s appeal were to succeed, it might be appropriate at the penalty stage that Ms. Kubassek be given an absolute discharge. Neither counsel resisted that suggestion, and I consider it to be fair and reasonable.

[27] Accordingly, I would grant the Crown’s application for leave to appeal and would allow the appeal. I would set aside the respondent’s acquittal, enter a finding of guilt, and order that she be discharged absolutely.

RELEASED:

“AUG 26 2004” “M.A. Catzman J.A.”

“KMW” “I agree K.M. Weiler J.A.”

“I agree M.C. MacPherson J.A.”

[^1]: Two years later, L’ Heureux-Dubé J. again adverted to, but did not resolve, the question of the applicability of de minimis non curat lex as a defence in R. v. Cuerrier (1998), 127 C.C.C. (3d) 1 at para.22. Neither of the other two judgments, by McLachlin J. (writing for herself and Gonthier J.) and by Cory J. (writing for himself and Major, Bastarache and Binnie JJ.), made any reference to the issue.

[^2]: These words are taken from the statement of the de minimis principle in The Reward (1818), 2 Dods. 265, 165 E.R. 1482: see para. 19.