ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Respondent
KEVIN RUMO
A. Koorshed, for the Crown
Kevin Rumo, on his own behalf
HEARD: March 27, 2013
REASONS FOR JUDGMENT
HOURIGAN J.
1This is an appeal from a judgment of the Honourable Justice Baldwin of the Ontario Court of Justice, dated June 5, 2012.
2The respondent, Kevin Rumo, was charged with three counts of assault which were all alleged to have been committed against his mother. One charge (count 2 in the Information) was dismissed by the trial judge at the invitation of the Crown as there was no reasonable prospect of conviction. Mr. Rumo was found not guilty on the remaining two counts of assault.
3For the reasons which follow, I have concluded that the appeal should be allowed.
Facts
4The first alleged incident of assault (count 1 in the Information) occurred in September or October of 2010. Mr. Rumo engaged in an argument with his mother. During the course of this argument the respondent grabbed his mother by the arms and dragged her into the house. The complainant described the force as being 8 out of 10, with 10 being the highest amount of force. According to the complainant, she was dragged 10 to 15 feet.
5As noted above, the second incident lead to a charge that was dismissed as there was no reasonable prospect of conviction.
6The third alleged incident of assault (count 3 in the Information) took place between December 27 and December 31, 2010. It is alleged that the complainant dragged his mother into a small room in the house. The complainant testified that the accused squeezed her forearms as he grabbed her and that the force used was greater than that used during the first incident. He then blocked his mother from leaving the room.
Decision of Justice Baldwin
7In brief oral reasons Justice Baldwin found Mr. Rumo not guilty. She concluded that the complainant was a “credible, decent lady”.
8In giving her oral reasons for judgment, the trial judge stated:
So, although made out, technically, there will not be a finding of guilt on the basis that it is too trivial for this court to be dealing with in the criminal justice system.
9The trial judge also concluded that the only reason the complainant eventually disclosed the allegations of assault, was that she was unhappy with the medical treatment and/or assessment of her son:
Obviously, things are terribly out of control. But, you cannot use the criminal justice system once you have tried to use the mental health system believing that that is what drove the behavior, because you do not like the results of the hospitals and the psychiatrists who make those decisions.
10For reasons that are not entirely clear, the trial judge went on to reference the fact that the respondent had been in custody for several months prior to the trial:
Also, taking into effect that the accused has been in custody for, looks like several months, over these and perhaps other allegations.
Analysis
11The question of the applicability of the principle of de minimis non curat lex is a question of law alone given the findings of fact made by the trial judge (see R .v Kubassek 2004 7571 (ON CA), [2004] O.J. No. 3483 (C.A), paragraphs 11 to 16). Specifically the trial judge found the complainant to be credible and found that the allegations had been made out.
12The decision of the trial judge cannot stand for the following reasons.
13First, she erred in law in concluding that the incidents were de minimis non curat lex. In Kubassek the court was dealing with a situation where the accused pushed a minister during a ceremony at a church. She pushed the minister with one hand in the chest nearly causing him to trip. The trial judge applied the de minimis non curat lex principle and acquitted the accused. The summary conviction appeal court upheld the acquittal.
14On further appeal, the Ontario Court of Appeal overturned the acquittal and entered a conviction. The court declined to determine whether the de minimis non curat lex principle is a defence in criminal law. Instead the court concluded that the principle was inapplicable in the circumstances of that case:
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. 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 minimus non curat lex and that the Crown’s appeal must succeed.
15In the case at bar, we are dealing with assaults that are more serious then what the court considered in Kubassek. In this case we have two incidents of domestic violence. While fortunately the assaults did not result in injury to the complainant, they certainly were not trifling or trivial. Therefore, the trial judge erred in relying on the de minimis non curat lex principle.
16I further find that the trial judge erred in concluding that the complainant could not have resort to both the mental health system and the criminal courts. Complaints cannot be placed in a situation where they must make an election when dealing with a family member who commits an assault. Not surprisingly, a complainant may seek to obtain mental health assistance first as the least intrusive method of dealing with the underlying issue. It would be wrong in principle to say to such a complaint that having chosen a responsible route to deal with the situation that they are forever barred from seeking redress in the criminal courts.
17The trial judge also erred in taking into account the fact that the respondent had spent a period of time in custody prior to the trial. Such considerations have nothing whatever to do with the determination of guilt.
Disposition
18I set aside the acquittal and enter findings of guilt for assault with respect to the first and third incidents, being counts 1 and 3 on the information.
19The Crown does not seek any further incarceration. That is as sensible position and I sentence Mr. Rumo to time served.
20The Crown seeks a three year probation order. I find that it is appropriate to make a probation order because I believe that it will assist Mr. Rumo in dealing with underlying anger issues. However, given that Mr. Rumo has just finished an eighteen month probation period, I think that it is inappropriate to order another three years of probation. I am ordering probation for a period of eighteen months. In addition to the usual conditions, I am ordering as follows:
(a) that he seek such counselling and treatment as directed by his probation officer;
(b) that he provide releases to his probation officer so that his treatment and counselling may be monitored;
(c) that he be prohibited from possessing any weapons as defined by the Criminal Code of Canada; and
(d) that he not contact his mother, Audrey Aspinall, unless he first obtains her written revocable consent filed with his probation officer.
21This is a secondary designated offence. I am satisfied that a DNA order should issue having given consideration to the offences and the circumstances related to their commission, and having considered the impact on the privacy and security of Mr. Rumo. I conclude that such an order will have a minimal impact on Mr. Rumo’s privacy and security and is appropriate given the seriousness of the offences.
22A section 109 weapons prohibition order for five years will also issue.
HOURIGAN J.
Released: March 27, 2013
COURT FILE NO.: CR12-109
DATE: 2013-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KEVIN RUMO
REASONS FOR JUDGMENT
HOURIGAN J.
Released: March 27, 2013