R. v. Arsenault, 2018 ONCJ 224

ONTARIO COURT OF JUSTICE CITATION: R. v. Arsenault , 2018 ONCJ 224 DATE: 2018·04·06 COURT FILE No.: Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT ARSENAULT Before Justice J. Bliss Heard on March 28 and 29, 2018 Reasons for Judgment released on April 6, 2018 M. Daigle ................................................................................................ counsel for the Crown P.

Card .............................................................. counsel for the defendant Robert Arsenault BLISS J.: [ 1 ] Robert Arsenault is charged that he did, on or about the 26 th day of October, 2017, without lawful excuse, disobey the lawful order made by the Honourable Justice L. Bird on the 26 th 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 s.127 of the Criminal Code . [ 2 ] 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. Arseanault’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 ] 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 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 ] 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 ] 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 thechildren, he also had to make arrangements to get a babysitter. According to Mr. Arsenault, when they separated, Ms. Brouwer took mostof the children’s clothes so Mr. Arsenault wanted, or needed, clothes for the girls. As the texts entered in evidence set out, Ms. Lepagedid not share the same need for a prompt response that Mr. Arsenault had. This explains to a great degree, the increasing frustration andurgency in Mr. Arsenault’s texts to Ms.

Lepage. [7] 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 witheach new text message Robert Arsenault’s profile picture would accompany the message, but the first page of text messages sheprovided 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] 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 onetext message shortly after Mr. Arsenault began communicating with Ms. Lepage that was not. It reads: “Yeah you should tell Beverlythat 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 breachingJustice Bird’s restraining order through his indirect communication to Ms.

Brouwer for his words, “you should tell Beverly that I pose nothreat 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, acomplaint was made to Barrie Police Service of Robert Arsenault’s breach of a family court order. While Ms. Lepage denied calling thepolice, if she did not call the police, the person who did must have had knowledge of Ms. Lepage’s exchanges with Mr. Arsenault andthose could only have come from Ms. Lepage who was in communication with Ms. Brouwer. [9] 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 inconjunction with the reference to the October 16, 2017 access order that it was unclear whether Mr. Arsenault was prohibited fromcommunicating with Ms. Brouwer as it would seem that he could “to permit access to Amberleigh Arsenault”.

The difficulty with thatsubmission is again that Mr. Arsenault never testified to such an

interpretation and the October 16, 2017 Order was not produced. [10] 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 minimus non curat lex”.

Upon a very cursory review of some of the authorities that addressedthe issue, the question was also whether such a principle is even available in criminal law, and so the matter was adjourned for furthersubmissions. [11] On the question of whether the principle of de minimus non curat lex is applicable, it is my view the principle and itsmeaning has been explained and commented on by enough concurrent and higher courts without any definitive statement of itsunavailability, that it is an available “defence” to criminal liability.

I readily concede that this position is subject of debate. [12] 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 com​munication here is of such a minimal and inconsequential sortas to attract application of the principle of de minimis non curat lex. I very much doubt, as have others, that the de minimus principle hasapplication to the criminal law: Regina v. Li (1985), (ON SC), 16 C.C.C. (3d) 382 (Ont. H.C.J.) at 384 perMontgomery J.; Regina v.

Quigley (1954), (AB CA), 111 C.C.C. 81 (Alta. C.A.) at 82, 84 per Ford J.A.; Regina v.McLeod (1955), (BC CA), 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 perBird 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 responsibilityand fault, for example, restraint in describing the actus reus of a crime (Regina v. Greenwood; Regina v. Tsinonis (1991), (ON CA), 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), (ON CA), 1 O.R. (3d) 247 (C.A.) at 257-261 per Doherty J.A.), and line-drawing as to causation respectingconsequential 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] Two decisions of the Ontario Court of Appeal in R. v. Murdock (ON CA), [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 Murdockthat 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 offundamental 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 holda "reasoned apprehension of harm" to other individuals or society: ... the degree of harm must be neither insignificant nor trivial. (para27) I find the analysis provided by Braidwood J.A. in Malmo-Levine, supra, persuasive.

In addition to the sources he refers to in support ofhis 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 fourcorners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principlealso underlies the long accepted rule of statutory

interpretation which directs that criminal statues, where possible, should not be read soas to encompass conduct which is trivial or harmless: R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128 at para. 36; Ontariov. Canadian Pacific Ltd., (SCC), [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 thecompeting theories of harm advanced by criminal law theorists. The harm principle, as a principle of fundamental justice, goes only sofar as to preclude the criminalization of conduct for which there is no "reasoned apprehension of harm" to any legitimate personal orsocietal interest. If conduct clears that threshold, it cannot be said that criminalization of such conduct raises the spectre of convictingsomeone who has not done anything wrong.

Difficult questions such as whether the harm justifies the imposition of a criminalprohibition or whether the criminal law is the best way to address the harm are policy questions that are beyond the constitutionalcompetence of the judiciary and the institutional competence of the criminal law adversarial process. (Para 33) [14] Authority for availability of the de minimus doctrine finds itself grounded in Justice L’Heureux-Dubé’s obiter comments inR. v. Hinchey (SCC), [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 aconviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to caseswhere an accused has "technically" violated a Code

section has been proposed by the Canadian Bar Association, in Principles ofCriminal 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 adefence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courtsbelow.

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] That day has not yet come. Given the opportunity to endorse or reject the doctrine, our Court of Appeal has declined to doso. 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 thelaw does not concern itself with trifles': see R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128.

This principle seeks to avoidthe criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The applicationof the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to anylegitimate 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 SupremeCourt of Canada explicitly did not decide on the applicability of the de minimus principle as a defence to criminal culpability. [16] In the absence of a rejection of the principle, the rationale for its availability and application was explained by Duncan J. inR. v. Juneja 2009 ONCJ 572 , [2009] O.J. No. 5119 (C.J.) and ODonnell 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 minimusdoctrine had not been authoritatively adopted or rejected but found some oblique appellate support for its application from R. v. Wolfe(1974) (ON CA), 20 C.C.C. (2d) 382 (Ont. C.A.) where the Court entered an acquittal on a charge of assault bodilyharm because the defendant's actions were found to be "reflexive" and therefore not intentional but also because “in any event, theencounter 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) (SK KB), 74 C.R. (3d) 368 ((Sask QB) andR. v. Kormos (1998) (ON SC), 14 C.R. (5th) 312 (Ont. C.J.) make reference to the de minimus principle in support ofits conclusions. [17] Lacking cases rejecting the legal availability of the de minimus principle in appropriate circumstances, Duncan J. foundunanimous authority in favour of the doctrine and was, accordingly, prepared to apply it. (Juneja, supra, para 14).

He also recognizedthe importance of the de minimus doctrine to the criminal law to relieve against overly broad criminal offences that ensnare trivial orunintended violations (see Hinchey, supra) and to preserve dignity and respect for the administration of justice by not trivializing theimportant work of the courts and to ensure that scarce time and resources are not wasted. (Juneja, supra, para 15) [18] Commenting favourably on the Juneja decision as well as the philosophy underlying the existence of the doctrine, ODonnellJ. referred to the reasons of Catzman J.A. in R. v. Kubassek (ON CA), [2004] O.J.

No. 3483 at para 19 in which hetraced the genesis for the principle de minimis non curat lex to Taverner v. Dominum Cromwell (1594), 78 E.R. 601 and noted that theprinciple was further amplified by Sir Walter Scott (later Lord Stowell) in The Reward (1818), 2 Dods. 265, 165 E.R. 1482 at 1484where 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 impliedin the ancient maxim, de minimis non curat lex.

Where there are irregularities of very slight consequence, it does not intend that theinfliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh littleor nothing on the public interest, it might properly be overlooked. [19] In Ferreira, ODonnell J. wrote that “for the time being, however, there is no clear appellate guidance as to the availability orunavailability of the doctrine of de minimus in Ontario.

It seems to me, that while such a doctrine will necessarily be of narrow ambit, itis 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 ablunt instrument and it is consistent with the good repute of the administration of justice that the courts reserve to themselves the right, inappropriate cases, to safeguard a defendant from a criminal finding where the conduct, although technically criminal, is so trifling as toraise no abiding concern.” (Ferreira, supra, para 26) [20] In the absence of clear authority precluding the application of the de minimus principle to appropriate cases, I am of the viewthat it is available. In the case before me, Mr.

Arsenault is charged under s.127 of the Criminal Code with breaching the Court Order ofBird J. The prosecution referred me to Greene J.’s opinion in R. v. Gibbons 2010 ONCJ 470 , [2010] O.J. No. 4448 (C.J.) atpara 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 thenature 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 ] 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 minimus non curat lex; accordingly, the charge against him will be dismissed.

Released: April 6, 2018 Signed: “Justice J. Bliss”