R. v. Thornton Date:, 2012 BCPC 360

Citation: R. v. Thornton Date: 20120917 2012 BCPC 0360 File No: 38353K1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN JOSEPH OLIVER THORNTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE SAUNDERSON Counsel for the Crown: Bruce Goddard Counsel for the Defendant: James Hormoth Place of Hearing: Campbell River , B.C. Date of Hearing: September 12, 2012 Date of Judgment: September 17, 2012

[ 1 ] Ryan Thornton got drunk one night and wrongly accused his wife of having an affair with another man. Then he went to bed and fell asleep. As this behavior was out of character for her husband, Mrs. Thornton got their video camera to film him so that she could show him how he was acting. She went into the bedroom with the camera. He was asleep, with the bed covers held under his chin. She pulled the covers away to expose his face. He woke up, saw the camera, jumped out of bed, grabbed the camera, and they had what she called “a tug of war” over it, lasting less than ten seconds.

She let go of the camera, he smashed it and pulled apart the video tape. She called 911, and the police arrived in a few minutes. [ 2 ] This incident occurred in Campbell River on June 26, 2012 and resulted in Mr. Thornton being charged with assaulting his wife. At trial, the prosecutor told the court that the assault consisted of the defendant indirectly applying force to his wife by trying to take the camera from her. She was not injured in this brief struggle. [ 3 ] Defence counsel argued that an assault had not been proved; or, if it had, the legal maxim de minimis non curat lex applied.

Freely translated, that means “the law takes no notice of trivialities”, or “the law will not provide a remedy for a trifling matter.” Section 265(1) (

a) of the Criminal Code defines assault as follows: “A person commits an assault when without the consent of another person, he applies force intentionally to that person, directly or indirectly.” Has the Crown proved the charge? It has not. To succeed, it must prove each element of the offence beyond a reasonable doubt. That Mr. Thornton intentionally applied force indirectly to his wife has been established by his attempt to remove the camera from her hands. But the Crown must also prove beyond a reasonable doubt that she did not consent to that application of force.

It is here that the case fails. [ 4 ] During her testimony, Mrs. Thornton denied that she consented to her husband’s attempt to take the camera from her. But her denial must be examined in the context of the events that occurred. She knew her husband was drunk and made an allegation that, I conclude, was hurtful to her and made her angry. She swore that her purpose in wanting to film him was to show him how badly he had behaved toward her. But by then the behavior in question had ended, and he was in bed asleep. Her explanation is not believable. It does not make sense.

One can only speculate about what was going on in her mind when she made her decision to film her husband, yet I am satisfied that it was more than she was prepared to volunteer in court. It was a virtual certainty that, bearing in mind Mr. Thornton’s condition, once he saw that he was about to be filmed, he would try to prevent that from happening; likely by knocking the camera out of her hands, or by taking it from her. She proceeded with her plan anyway.

Armed with that knowledge, she must be taken to have consented to his reaction, or, at the very least, proof of her lack of consent has not been established to the required degree. [ 5 ] The de minimis defence is available in criminal cases, according to all the judicial decisions submitted by counsel for the Crown and the defendant. The issue is whether the facts justify its application. In this matter, if there was an assault, counsel agree that it was only in the most technical sense. Here the incident was minor - indeed it was trifling.

It was utterly insignificant by any objective standard. [ 6 ] Some have argued that the de minimis defence should never be available in cases involving allegations of spousal assaults. In that regard, this court, in R. v. J.K.H. , [2008] BCPC 13, adopted the opinion of Judge Semenuk in R. v. McLeod , [2006] ABPC 114, where he wrote: “In my view, it would be wrong to have a blanket prohibition against the application of the de minimis principle in a domestic context. Inflexibility in the application of the law, without regard to the particular circumstances of the case, may work an injustice.

The principle itself is an equitable one providing relief, in appropriate cases, from an unduly strict application of the law. Certainly, the fact that an offence occurs in a domestic context is a factor to be considered in the application of the principle, but it should not be a bar to its application in every case.”

[ 7 ] The normal process in criminal matters in British Columbia is that the police conduct investigations, and may recommend charges, but only Crown Counsel have the authority to approve charges. In doing so, Crown Counsel must be satisfied of two things: that there is a substantial likelihood of conviction, and that it is in the public interest to prosecute the person alleged to have committed the crime. In this case, whether there was a substantial likelihood of conviction was, as with beauty, in the eye of the beholder.

To make that assessment with the advantage of hindsight would be unfair. [ 8 ] It can be said with certainty, however, that it was not in the public interest to prosecute this man for this event. The police had the discretion not to forward a report to Crown Counsel, but chose to do otherwise. Then Crown Counsel had the discretion not to approve a charge, but chose to do otherwise. The Crown (collectively the police and the prosecutors) took the easy way out by leaving the matter to the court. This is clearly a case in which the so-called spousal assault policy overtook and trumped common sense.

The public interest was not served by this proceeding. It was a waste of the court’s time and the taxpayers’ money. The de minimis principle applies. The charge is dismissed.