Court Information

Ontario Court of Justice

Date: 2018-04-06

Court File No.: Central East Region

Parties

Between:

Her Majesty the Queen

— AND —

Robert Arsenault

Judicial Officer and Counsel

Before: Justice J. Bliss

Heard on: March 28 and 29, 2018

Reasons for Judgment released on: April 6, 2018

Counsel:

• M. Daigle — counsel for the Crown
• P. Card — counsel for the defendant Robert Arsenault

Reasons for Judgment

BLISS J.:

[1] The Charge

Robert Arsenault is charged that he did, on or about the 26th day of October, 2017, without lawful excuse, disobey the lawful order made by the Honourable Justice L. Bird on the 26th day of October, 2017 to not contact or communicate directly or indirectly with Beverly Nicole Brouwer except through Amanda Lepage 705-434-7484 to arrange access to the children, contrary to section 127 of the Criminal Code.

[2] Background Facts

Robert Arsenault and Beverly Brouwer were in a relationship for five years. They have one child together, Amberleigh, and Mr. Arsenault was the stepfather to Ms. Brouwer's daughter, Julie. In August, 2017, they moved to 236 Letitia Street in Barrie along with Mr. Arsenault's other daughter and stepdaughter and their boyfriends. They also bought a 2016 Jeep Cherokee. Although financed in Mr. Arsenault's name, it was for Ms. Brouwer's use. Shortly after the move and the car purchase, Ms. Brouwer told Mr. Arsenault that she wanted to end their relationship. In the two weeks or so before she moved out, it seems that the two came to an understanding that if Ms. Brouwer wanted to keep the Jeep, she would take over the financing payments. From there matters seemingly progressed like so many other family break-ups. Family Court proceedings were commenced in September, an access order was made on October 16, 2017; so far all very ordinary events.

[3] The Vehicle Repossession

Contrary to what Mr. Arsenault says was their agreement, Ms. Brouwer did not keep up the payments on the Jeep. Mr. Arsenault's response was to "repossess" the vehicle. On October 25, 2017, he got a drive to where she was living, and using a spare key, drove the Jeep away. Apparently, Ms. Brouwer was rather matter of fact in her response texting him that losing the Jeep did not impact her as she had a vehicle to go back and forth to work. Mr. Arsenault's response was that it was good he did not impact her losing her job.

[4] The Restraining Order

The next day, October 26, 2017, Ms. Brouwer went to Family Court and without notice, obtained a restraining order that prohibited Robert Arsenault from "contacting or communicating directly or indirectly with Beverly Brouwer except through Amanda Lepage to arrange access to the children; except to permit access to Amberleigh Arsenault as set out in the access order dated October 16, 2017". I note that the October 16, 2017 access order was not produced at Mr. Arsenault's trial.

[5] Communications with Amanda Lepage

Mr. Arsenault admits having been served with a copy of the Restraining Order on October 26, 2017 at 4:55 p.m. His communication with Amanda Lepage, the third party conduit for communication with Beverly Brouwer to arrange access to the child, apparently commenced shortly thereafter. It is his text communications with Ms. Lepage that is the subject of the criminal charge he is now facing.

[6] Context of the Communications

October 26, 2017 was a Thursday. Mr. Arsenault was supposed to have access to Amberleigh and Julie that weekend beginning the Friday night. At the time, Mr. Arsenault's work began at 4 a.m. and so he would go to bed at 8 p.m. If he was having the children, he also had to make arrangements to get a babysitter. According to Mr. Arsenault, when they separated, Ms. Brouwer took most of the children's clothes so Mr. Arsenault wanted, or needed, clothes for the girls. As the texts entered in evidence set out, Ms. Lepage did not share the same need for a prompt response that Mr. Arsenault had. This explains to a great degree, the increasing frustration and urgency in Mr. Arsenault's texts to Ms. Lepage.

[7] Credibility of Amanda Lepage

It was readily clear almost from the outset of Ms. Lepage's testimony that she was, and is, Ms. Brouwer's friend and ally. She provided, by her own admission, only a portion of her Facebook communications with Mr. Arsenault. That was obvious as with each new text message Robert Arsenault's profile picture would accompany the message, but the first page of text messages she provided to police was headed "OCT 26 AT 5:36 PM" but contained no such profile picture. The messages end some time on October 26th and then recommence on October 27th at 7:42 a.m.

[8] The Disputed Text Message

Of Mr. Arsenault's thirty-four text messages to Ms. Lepage that were provided by Ms. Lepage to police between October 26th at 5:36 p.m. and October 27th at 3:51 p.m., thirty-three had to do with making arrangements for access to the children. There is one text message shortly after Mr. Arsenault began communicating with Ms. Lepage that was not. It reads: "Yeah you should tell Beverly that I pose no threat to her and now I have a restraining order and what's going on this weekend". Mr. Arsenault is on trial for breaching Justice Bird's restraining order through his indirect communication to Ms. Brouwer for his words, "you should tell Beverly that I pose no threat to her." It is unclear what time that text was sent but it was clearly before 6:56 p.m., the next time noted. At 6:00 p.m., however, a complaint was made to Barrie Police Service of Robert Arsenault's breach of a family court order. While Ms. Lepage denied calling the police, if she did not call the police, the person who did must have had knowledge of Ms. Lepage's exchanges with Mr. Arsenault and those could only have come from Ms. Lepage who was in communication with Ms. Brouwer.

[9] Defence Submissions

Despite defence counsel's urging that Mr. Arsenault's words are connected to access because if he posed a threat to Ms. Brouwer he would not get access to the children, Mr. Arsenault never testified to that. His evidence was that those words had nothing to do with access to his children. Counsel also submitted that the wording of the October 26th order was ambiguous and that read in conjunction with the reference to the October 16, 2017 access order that it was unclear whether Mr. Arsenault was prohibited from communicating with Ms. Brouwer as it would seem that he could "to permit access to Amberleigh Arsenault". The difficulty with that submission is again that Mr. Arsenault never testified to such an interpretation and the October 16, 2017 Order was not produced.

[10] The De Minimis Question

During the course of submissions, I raised whether Mr. Arsenault's words, if they did violate Justice Bird's order, nonetheless engaged the principle of de minimis non curat lex. Upon a very cursory review of some of the authorities that addressed the issue, the question was also whether such a principle is even available in criminal law, and so the matter was adjourned for further submissions.

Analysis: The De Minimis Principle in Criminal Law

[11] Availability of the De Minimis Principle

On the question of whether the principle of de minimis non curat lex is applicable, it is my view the principle and its meaning has been explained and commented on by enough concurrent and higher courts without any definitive statement of its unavailability, that it is an available "defence" to criminal liability. I readily concede that this position is subject of debate.

[12] Judicial Uncertainty in R. v. Juliano

Hill J., sitting as a Summary Conviction Appeal Court in R. v. Juliano [2002] O.J. No. 699 (S.C.J.) at para 24-25, questioned, without answering, whether the principle does apply to criminal law. He wrote:

Mr. Schneiderman presses a second and related submission … that the communication here is of such a minimal and inconsequential sort as to attract application of the principle of de minimis non curat lex. I very much doubt, as have others, that the de minimus principle has application to the criminal law: Regina v. Li (1985), 16 C.C.C. (3d) 382 (Ont. H.C.J.) at 384 per Montgomery J.; Regina v. Quigley (1954), 111 C.C.C. 81 (Alta. C.A.) at 82, 84 per Ford J.A.; Regina v. McLeod (1955), 111 C.C.C. 137 (B.C.C.A.) at 137 per Sloan C.J.B.C., at 138 per O'Halloran J.A., at 140 per Bird J.A.; Regina v. Boyesen (1982), 75 Cr. App. R. 51 (H.L.) at 54-57 per Lord Scarman.

However, it may be that the de minimis principle in some measure, at least indirectly, informs our definition of criminal responsibility and fault, for example, restraint in describing the actus reus of a crime (Regina v. Greenwood; Regina v. Tsinonis (1991), 67 C.C.C. (3d) 435 (Ont. C.A.) at 450-452 per Doherty J.A.) or the mens rea of an offence (Regina v. McDougall (1990), 1 O.R. (3d) 247 (C.A.) at 257-261 per Doherty J.A.), and line-drawing as to causation respecting consequential crimes (Nette v. The Queen (2002), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.) at 504-513 per Arbour J.).

[13] Ontario Court of Appeal Support in R. v. Murdock and R. v. Carson

Two decisions of the Ontario Court of Appeal in R. v. Murdock, [2003] O.J. No. 2470 and R. v. Carson [2004] O.J. No. 1530 lend some support for the application of the de minimus principle. Addressing the submission in Murdock that as a matter of fundamental justice, conduct can only be criminalized if it meets a minimum level of harm, Doherty J.A. responded:

Braidwood J.A., in a well-reasoned analysis in R. v. Malmo-Levine (2000), 2000 BCCA 335, 145 C.C.C. (3d) 225 at 246-82 (B.C.C.A.), leave to appeal to S.C.C. granted [2000] S.C.C.A. No. 490, accepted that the "harm principle" was a principle of fundamental justice. He framed the principle in these words at p. 275:

The proper way of characterizing the "harm principle" in the context of the Charter is to determine whether the prohibited activities hold a "reasoned apprehension of harm" to other individuals or society: ... the degree of harm must be neither insignificant nor trivial. (para 27)

I find the analysis provided by Braidwood J.A. in Malmo-Levine, supra, persuasive. In addition to the sources he refers to in support of his conclusion that the harm principle is a principle of fundamental justice, I would add that the concept has strong common law roots. The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statues, where possible, should not be read so as to encompass conduct which is trivial or harmless: R. v. Hinchey, [1996] 3 S.C.R. 1128 at para. 36; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at 1082. (para 29)

It is not for the judiciary under the guise of applying the harm principle as a principle of fundamental justice to choose from among the competing theories of harm advanced by criminal law theorists. The harm principle, as a principle of fundamental justice, goes only so far as to preclude the criminalization of conduct for which there is no "reasoned apprehension of harm" to any legitimate personal or societal interest. If conduct clears that threshold, it cannot be said that criminalization of such conduct raises the spectre of convicting someone who has not done anything wrong. Difficult questions such as whether the harm justifies the imposition of a criminal prohibition or whether the criminal law is the best way to address the harm are policy questions that are beyond the constitutional competence of the judiciary and the institutional competence of the criminal law adversarial process. (Para 33)

[14] Supreme Court Obiter in R. v. Hinchey

Authority for availability of the de minimus doctrine finds itself grounded in Justice L'Heureux-Dubé's obiter comments in R. v. Hinchey, [1996] S.C.J. No. 121 at para 69 in which she opined:

...assuming 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: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 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.

[15] Ontario Court of Appeal Decline to Decide in R. v. Carson

That day has not yet come. Given the opportunity to endorse or reject the doctrine, our Court of Appeal has declined to do so. In Carson, supra, para 24-25, the Court wrote:

The appellant submits, in the alternative, that the trial judge's decision is contrary to the principle of "de minimus non curat lex", that the law does not concern itself with trifles': see R. v. Hinchey, [1996] 3 S.C.R. 1128. This principle seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest: R. v. Murdock, supra.

We would not give effect to this submission. Hinchey dealt with the acceptance of a benefit by a public servant. In that case, the Supreme Court of Canada explicitly did not decide on the applicability of the de minimus principle as a defence to criminal culpability.

[16] Trial Court Support in R. v. Juneja and R. v. Ferreira

In the absence of a rejection of the principle, the rationale for its availability and application was explained by Duncan J. in R. v. Juneja 2009 ONCJ 572, [2009] O.J. No. 5119 (C.J.) and O'Donnell J. in R. v. Ferreira 2014 ONCJ 21, [2014] O.J. No. 189 (C.J.). The logic of their respective analyses are persuasive. Duncan J. started from the premise that the de minimus doctrine had not been authoritatively adopted or rejected but found some oblique appellate support for its application from R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.) where the Court entered an acquittal on a charge of assault bodily harm because the defendant's actions were found to be "reflexive" and therefore not intentional but also because "in any event, the encounter was a trifling one and we have come to the conclusion that the appeal ought to be allowed and the finding of guilt set aside...". (Juneja, supra, para 12). Other trial decisions such as R. v. Lepage (1989), 74 C.R. (3d) 368 ((Sask QB) and R. v. Kormos (1998), 14 C.R. (5th) 312 (Ont. C.J.) make reference to the de minimus principle in support of its conclusions.

[17] Unanimous Authority for the Doctrine

Lacking cases rejecting the legal availability of the de minimus principle in appropriate circumstances, Duncan J. found unanimous authority in favour of the doctrine and was, accordingly, prepared to apply it. (Juneja, supra, para 14). He also recognized the importance of the de minimus doctrine to the criminal law to relieve against overly broad criminal offences that ensnare trivial or unintended violations (see Hinchey, supra) and to preserve dignity and respect for the administration of justice by not trivializing the important work of the courts and to ensure that scarce time and resources are not wasted. (Juneja, supra, para 15)

[18] Historical Roots of De Minimis

Commenting favourably on the Juneja decision as well as the philosophy underlying the existence of the doctrine, O'Donnell J. referred to the reasons of Catzman J.A. in R. v. Kubassek, [2004] O.J. No. 3483 at para 19 in which he traced the genesis for the principle de minimis non curat lex to Taverner v. Dominum Cromwell (1594), 78 E.R. 601 and noted that the principle was further amplified by Sir Walter Scott (later Lord Stowell) in The Reward (1818), 2 Dods. 265, 165 E.R. 1482 at 1484 where he wrote:

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.

[19] Application of De Minimis in R. v. Ferreira

In Ferreira, O'Donnell J. wrote that "for the time being, however, there is no clear appellate guidance as to the availability or unavailability of the doctrine of de minimus in Ontario. It seems to me, that while such a doctrine will necessarily be of narrow ambit, it is appropriate that such a doctrine be recognized as a legitimate means of permitting a criminal court, in the words of The Reward, supra, properly to overlook a deviation that was a mere trifle that would weigh little or nothing on the public interest. The criminal law is a blunt instrument and it is consistent with the good repute of the administration of justice that the courts reserve to themselves the right, in appropriate cases, to safeguard a defendant from a criminal finding where the conduct, although technically criminal, is so trifling as to raise no abiding concern." (Ferreira, supra, para 26)

[20] Application to Section 127 Breaches

In the absence of clear authority precluding the application of the de minimus principle to appropriate cases, I am of the view that it is available. In the case before me, Mr. Arsenault is charged under section 127 of the Criminal Code with breaching the Court Order of Bird J. The prosecution referred me to Greene J.'s opinion in R. v. Gibbons 2010 ONCJ 470, [2010] O.J. No. 4448 (C.J.) at para 10 in which she held that "[e]ssentially s.127 of the Criminal Code makes it an offence to breach any Court Order regardless of the nature of the Court Order or the circumstances surrounding the making of the Court Order. Even the most trivial breach of a Court Order is an offence". With respect, I do not agree. The criminal law provides, where appropriate, for consideration whether the "offence" and the public or societal interest is so trivial or of such a mere trifle that criminal sanction should not follow.

[21] Application to the Facts

There was no evidence of Mr. Arsenault having a criminal record or any history of violence. By all accounts he is a good and loving father to his biological daughter and his stepdaughter. On the evidence before me, I do not find that the portion of Mr. Arsenault's text message, "you should tell Beverly I pose no threat to her" considered in context, and parsed as it was from his numerous exchanges with Ms. Lepage, many of which were met with silence, had any impact on any public or community interest. There was no evidence of Ms. Brouwer being impacted nor could it be said that the transgression of Justice Bird's Order was anything other than trivial or trifling. Mr. Arsenault's offence was so trivial and so trifling that it engaged the principle of de minimis non curat lex; accordingly, the charge against him will be dismissed.

Released: April 6, 2018

Signed: Justice J. Bliss