Reconceptualizing De Minimis Non Curat Lex
(2017) 64:1 Criminal Law Quarterly 200
24 Pages Posted: 16 Apr 2018
Date Written: January 1, 2016
Abstract
The de minimis defence has been preserved under section 8(3) of the Criminal Code, which allows courts to preserve common law defences that are not inconsistent with any federal statutes. To be preserved, however, a defence must be a "justification, excuse, or other defence". I contend that the de minimis defence does not meet any of these definitions. The defence may, however, be preserved under section 7 of the Charter, which provides that criminal laws must not be able to deprive accused persons of liberty in a manner that is grossly disproportionate with a criminal offence's objective. Preserving the defence under the Charter, I maintain, provides the defence with a more cognizable and less indeterminate foundation.
Keywords: defences, de minimis non curat lex, justification, excuse
JEL Classification: K14
Suggested Citation: Suggested Citation