Court File and Parties

ONTARIO COURT OF JUSTICE DATE: January 24, 2022 COURT FILE No.: Simcoe 20-651

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Jessica Haynes

Before Justice A.D. Hilliard

Heard on January 20, 2022

Reasons for Judgment released on January 24, 2022

S. Hickenbottom................................................................................. counsel for the Crown J. Battin.......................................................................................... counsel for the defendant

Hilliard J.:

[1] After the trial in this matter, I advised counsel and Ms. Haynes that I was dismissing the charge on the basis of the common law doctrine of de minimum non curat lex with written reasons to follow.

The offence – assault:

[2] A long-standing dispute between the accused, Ms. Haynes, her common law partner, Mr. McMaster, and their neighbours, Mr. Wilson, the complainant, and his wife, Mrs. Wilson, culminated in an incident on June 13, 2020 when Ms. Haynes sprayed Mr. Wilson with her garden hose. Ms. Haynes did not dispute that she sprayed water at Mr. Wilson on the day of the incident.

[3] Mr. Wilson’s evidence was that the water from the garden hose was scalding hot as a result of the hose having sat out in Ms. Haynes’ yard for hours in the summer sun. He testified that the water was sprayed directly into his eyes from a distance of no more than 2 feet. Mr. Wilson stated that the water injured his eyes to the extent that he had to go to his doctor for medical examination. According to Mr. Wilson, his doctor prescribed two medications, although he could not recall what he had been prescribed. Mr. Wilson stated that he suffered headaches and sensitivity to light for days after the incident.

[4] Ms. Haynes testified that she sprayed Mr. Wilson with her garden hose after seeing Mr. Wilson gesture with his hedge clippers towards Mr. McMaster in a threatening manner. Her evidence was that given the long-standing dispute ongoing between her and Mr. Wilson she was fearful for her spouse and unsure of what Mr. Wilson was capable of doing.

[5] Five video clips were played as part of the Crown’s evidence. Ms. Haynes and Mr. McMaster have video surveillance cameras mounted on their house which record video from different angles throughout the day. These cameras were mounted by Mr. McMaster as a result of the ongoing dispute with the Wilsons and multiple attendances by police and by-law enforcement officers. All of the video surveillance footage was time and date stamped.

[6] The video clips were the most compelling evidence in this trial. I could see the interaction between Mr. Wilson and Ms. Haynes, which lasted approximately 90 seconds, during which Ms. Haynes did indeed spray her garden hose in the direction of where Mr. Wilson was standing. Based on that evidence, and Ms. Haynes’ own concession during her testimony that she deliberately sprayed water at Mr. Wilson from her garden hose, the offence of assault is made out beyond a reasonable doubt.

Defence of Person

[7] Ms. Haynes argues that she acted in the defence of her spouse, Mr. McMaster, who was being threatened by Mr. Wilson and his garden shears. Her position is that the defence of other is available pursuant to s. 34(1) of the Criminal Code, and that she should be found not guilty of the offence of assault.

[8] On the totality of the evidence, I find that defence of other is not made out. The defence requires that Ms. Haynes’ belief about the threat posed to Mr. McMaster be reasonable in the circumstances. Mr. McMaster himself testified that he did not feel threatened by the motions Mr. Wilson was making with his garden shears.

[9] Although I accept that there has been a long-standing dispute between these two neighbours, the evidence before me does not support a finding that Ms. Haynes believed on reasonable grounds that the threat of force by Mr. Wilson against Mr. McMaster was sufficient to warrant Ms. Haynes grabbing her garden hose and spraying Mr. Wilson.

De minimus non curat lex

[10] The Ontario Court of Appeal and the Supreme Court of Canada have both declined to make a definitive pronouncement on the availability of the defence of de minimus non curat lex to a criminal offence:

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.

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] 3 S.C.R. 1128, 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. [1]

[11] Section 8(3) of the Criminal Code specifically provides for the continuation of common law principles despite the codification of criminal law:

Common law principles continued – Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament. [2]

[12] A number of judges of both the Court of Justice and the Superior Court of Justice in Ontario have applied the common law doctrine of de minimus as a full defence against a criminal offence. Although many of those decisions echo L’Heureux-Dubé J.’s comment in Hinchey, that there is some debate about the availability of de minimus as a defence in criminal proceedings, judges have nonetheless applied the common law doctrine and dismissed the charges before the court. [3]

[13] It is also relevant to consider the decision of R. v. McCaffrey, wherein Justice Aitken, sitting as a summary conviction appellate court, found that “[i]t was well within the discretion afforded to the trial judge in this case to determine whether it was appropriate to allow the common law defence of de minimis non curat lex.” [4] This finding by Justice Aitken is an appellate ruling on the availability of the de minimis defence in a criminal proceeding.

[14] Based on the existing jurisprudence, I am of the view that the question is not whether the common law doctrine of de minimus is available, but rather whether on the evidence I do accept, the facts support a finding that the de minimus doctrine should be applied.

Application of de minimus in this case

[15] The doctrine of de minimus can only be applied when I have found beyond a reasonable doubt that the essential elements of the offence of assault have been established by the Crown. In this case, defence counsel appropriately conceded that the offence of assault had been proven by the Crown beyond a reasonable doubt.

[16] The question then becomes was the assault of such a trifling or trivial nature that there should be no criminal sanction. It is a higher threshold then finding that an absolute discharge should be granted after a finding of guilt. An absolute discharge is still a criminal sanction. A finding of guilt is registered and a record of the discharge is publicly accessible, albeit for a limited period of time.

[17] The application of the de minimus principle is not, however, confined to cases like Juneja where Justice Duncan found that the matter before him was so trivial that he was not prepared to even allow the trial to continue to completion. De minimus should be applied only in situations where the facts accepted support a conclusion that the act committed is of such a minimal or inconsequential nature that there should not be even a finding of guilt.

[18] The evidence of Mr. Wilson as to the nature and consequences of the assault was not credible. I found Mr. Wilson’s evidence to be highly exaggerated and inconsistent with the evidence of other witnesses.

[19] Mr. Wilson’s evidence that the water was so hot as to be described as “scalding” does not accord with the evidence of Mr. Wilson’s wife that the temperature of the water was “warm”. Mr. McMaster who was also incidentally sprayed with water from the garden hose described the temperature of the water as “cool”. The video surveillance also shows Ms. Haynes watering her garden just prior to the incident, which would have discharged any residual water in the hose warmed by the summer sun.

[20] My finding that Mr. Wilson’s evidence was exaggerated is also supported by the video surveillance. Ms. Haynes started spraying water from her garden hose in the direction of Mr. Wilson from her front lawn and then continued spraying for a matter of seconds as she walked towards him. Mr. Wilson was standing on his property behind a hedge of shrubs. A driveway approximately the width of a standard car separates Ms. Haynes’ front lawn from the shrub hedge delineating the property line. Mr. Wilson’s exclamation that Ms. Haynes is assaulting him with a deadly weapon can be clearly heard on the videotape evidence and is stated as Ms. Haynes is spraying water from the other side of her driveway. Mr. Wilson then starts screaming as if in agony, akin to what I would expect to hear from a person who has been accosted with a highly toxic substance.

[21] The video evidence also demonstrated that Mr. Wilson would have seen Ms. Haynes go and retrieve her garden hose even before the water started spraying in his direction. Although the entire interaction was brief, less than two (2) minutes in duration, Mr. Wilson could not have been surprised or taken off guard when water started being sprayed in his direction.

[22] It is also clear from the video evidence that the proximity of the hose nozzle out of which water was being sprayed was not as described by Mr. Wilson – less than two feet from his face directly into his eyes. The spray pattern from the hose was not one of a jet stream but rather a diffuse spray of water as seen by the droplets I could observe on the driveway. The force of the stream of water would have been minimal by the time it travelled the distance between where Ms. Haynes was holding the nozzle and Mr. Wilson was standing on the other side of the hedge. My conclusion as to the spray pattern from the hose is supported by the evidence of both Mr. McMaster and Mrs. Wilson that they were both sprayed incidentally during the incident.

[23] Mr. Wilson’s utterances and audible reaction to being sprayed with water were deliberate and calculated. The screaming and moaning that was audible on the video surveillance and the cell phone video footage obtained from Mrs. Wilson was disproportionate and exaggerated to the point of theatrics.

[24] I accept that some water landed on Mr. Wilson and that some water may have entered his eye or eyes, despite the expected autonomic response for the eyes to close when water can be seen to be sprayed in one’s direction. However, I find that the amount of water that impacted Mr. Wilson such as to make out the actus reus of assault was of such a trivial and trifling nature that a finding of guilt is not appropriate in the circumstances.

[25] The application of the doctrine of de minimus, for all of the reasons set out above, resulted in the dismissal of the charges as indicated orally at the conclusion of trial.

Released: January 24, 2022 Signed: Justice A.D. Hilliard

[1] R. v. Kubassek, [2004] O.J. No. 3483 (CA) paragraphs 19 – 20. [2] Criminal Code, R.S.C. 1985 C. C-46, as am., s. 8(3) [3] See R. v. Juneja, 2009 ONCJ 572, [2009] O.J. No. 5119 (CJ), R. v. Ferreira, 2014 ONCJ 21, [2014] O.J. No. 189, R. v. Arsenault, [2018] O.J. No. 1858. I would note that by definition the common law consists of decisions from all levels of court, including trial decisions that are upheld or not otherwise subject to appellate scrutiny. [4] [2020] O.J. No. 5148 at paragraph 32.