The de minimis non curat lex <\/em>maxim provides that the law ought not be concerned with \u201ctrifle[s].\u201d[1]<\/a> The principle has two distinct applications in Canadian law. The first employs the absurdity principle of statutory interpretation to confine the applicable scope of a law.[2]<\/a> This application prevents a plausible interpretation of a law from being adopted if its results could not have been intended by the legislature.[3]<\/a> The second application invokes de minimis<\/em> as an excusatory defence to unlawful conduct.[4]<\/a> De minimis<\/em> as a defence has yet to be affirmed by the Supreme Court of Canada,[5]<\/a> though various trial courts have applied the principle in this manner.[6]<\/a><\/p>\n In an intriguing article, Steve Coughlan endorses the de minimis<\/em> principle as an element of the absurdity principle but maintains that de minimis<\/em> ought not be preserved as a criminal defence.[7]<\/a> Coughlan thinks that the absurdity principle can be used to avoid convicting people for the vast majority of de minimis<\/em> conduct.[8]<\/a> Where it cannot, he suggests that deference be shown to legislatures and de minimis<\/em> conduct be duly prosecuted unless it would amount to an abuse of process. To conclude otherwise would constitute an unjustifiable intrusion into the prosecutor\u2019s discretion to bring charges.[9]<\/a> For Coughlan, however, the availability of the abuse of process defence obfuscates the need to preserve de minimis<\/em> as a defence.[10]<\/a> In addition, Coughlan maintains that the de minimis<\/em> principle ought not be a defence because its purpose is already served by a particular sentencing tool: an absolute discharge.[11]<\/a> Finally, he suggests that de minimis<\/em> ought not be a defence for substantially the same reasons constitutional exemptions are impermissible under the Canadian Charter of Rights and Freedoms<\/em>.[12]<\/a><\/p>\n Coughlan\u2019s arguments provide a strong case against preserving the de minimis<\/em> defence from one of Canada\u2019s leading criminal law scholars.[13]<\/a> Nevertheless, I think he relies on an improper conception of the de minimis<\/em> principle in rejecting its role as a criminal defence. The de minimis<\/em> defence does not interfere with the Crown\u2019s discretion to bring charges, but instead ensures that judges are not forced to find an accused guilty where it would be inconsistent with the principles of fundamental justice. Put differently, in the rare cases that a judge applies the de minimis<\/em> defence, it is because the consequences of finding the accused guilty\u2014regardless of the potential to apply a lenient punishment\u2014would be grossly disproportionate to the ability of the law to further its objective in relation to the accused\u2019s conduct.<\/p>\n Coughlan\u2019s argument that the de minimis<\/em> defence is unnecessary given existing defences (abuse of process) or sentencing provisions (absolute discharge) also cannot stand up to closer scrutiny. In my view, the de minimis<\/em> defence is a unique instance of the abuse of process doctrine. As with other defences situated within that doctrine\u2014such as entrapment\u2014the unique context within which the de minimis<\/em> defence operates leaves adequate conceptual space for it to be recognized as its own defence. As for the availability of absolute discharges, I maintain that there are several potential consequences that distinguish receiving an absolute discharge from being acquitted of a crime outright. Thus, the mere existence of an absolute discharge is not sufficient to render the de minimis<\/em> defence moot.<\/p>\n Finally, Coughlan\u2019s contention that the de minimis<\/em> defence is analogous to a constitutional exemption is unpersuasive in light of the role of defences in criminal law. Constitutional exemptions are not permitted because they would involve judges rewriting statutes contrary to legislative intent. Although providing an exemption to something like a mandatory minimum sentence\u2014the locus point of the debate about exemptions[14]<\/a>\u2014unjustly interferes with Parliament\u2019s discretion, this is because Parliament did not enact such a provision with any exceptions in mind. Defences exist to ensure broadly drafted laws are not applied in an unduly harsh manner, and legislatures craft offences knowing that defences play this role. The comparison between de minimis<\/em> as a defence and constitutional exemptions is therefore inapt.<\/p>\n Before proceeding, I should be clear with respect to the scope of my argument. I am discussing the role of de minimis<\/em> as a defence in criminal law. As such, I make no recommendations with respect to whether de minimis<\/em> ought to be preserved as a defence in the civil law, where it in fact originated.[15]<\/a> I limit the scope of my argument because I think the de minimis<\/em> defence in criminal law takes its shape from the Canadian Charter<\/em>. The civil law context will typically not engage constitutional interests as is routinely the case with criminal prohibitions. This fact may well result in a different conception of the de minimis<\/em> defence in civil law, but I have nothing further to say about the role of de minimis<\/em> in that context.<\/p>\n The\u00a0de minimis<\/em>\u00a0principle is often traced back to a decision of the English courts commonly cited as\u00a0The Reward<\/em>.[16]<\/a>\u00a0Writing in 1818, Sir Walter Scott recognized that courts could not properly take on legislative functions and declare a clear breach of the law of no force or effect. In so concluding, however, he also recognized that there are exceptions to this general principle. In Sir Walter Scott\u2019s view:<\/p>\n 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,\u00a0De minimis non curat lex<\/em>.\u2014Where 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.[17]<\/a><\/p>\n Although Sir Walter Scott identified a general de minimis<\/em> principle, he also delimited its scope by opining upon the purpose of the principle. His reference to a need to avoid \u201cinflexibly severe penalties\u201d suggests that the de minimis<\/em> principle was originally concerned with avoiding undue punishment, not a perceived need to restrict the scope of offences.[18]<\/a><\/p>\n The de minimis<\/em> principle was first applied in the Canadian civil law context in 1932.[19]<\/a> However, it was not until the mid-twentieth century that it was cited in the Canadian criminal law context.[20]<\/a> One of the first cases to apply the de minimis<\/em> principle was the Alberta Supreme Court\u2019s decision in R v<\/em>. Ling<\/em>.[21]<\/a> The accused was charged with illegal possession of heroin under the Opium and Narcotic Drug Act<\/em>.[22]<\/a> The police discovered the drug after seizing and searching the accused\u2019s pants pockets. The heroin found was not detectable by the naked eye and was only discovered \u201cthrough a number of complicated chemical steps.\u201d[23]<\/a> In acquitting the accused, Justice McBride observed that the prosecution was \u201casking the court to carry findings to an absurdity.\u201d[24]<\/a> He continued: \u201cI cannot bring myself to the view here, that there was illegal possession of heroin in the contemplation of Parliament, in what otherwise were empty pockets.\u00a0If Parliament had so intended it would have been a simple matter to have said so explicitly in the Act.\u201d[25]<\/a><\/p>\n The Supreme Court of Canada approved of this use of the de minimis<\/em> principle in Ontario v<\/em>. Canadian Pacific Ltd<\/em>.[26]<\/a> As Justice Gonthier observed, the absurdity principle allows for the consequences of competing interpretations of a statute to be used to \u201cassist the courts in determining the actual meaning intended by the legislature.\u201d[27]<\/a> Citing Elmer Driedger, Justice Gonthier agreed that the absurdity principle may be relied upon to narrow the scope of a statute.[28]<\/a> As such, he concluded that \u201c[w]here a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature.\u201d[29]<\/a> Citing Sir Walter Scott\u2019s reasoning in The Reward<\/em>, Justice Gonthier explicitly drew a connection between the absurdity principle and the maxim de minimis non curat lex<\/em>.[30]<\/a><\/p>\n Although the de minimis<\/em> principle originally delimited the scope of statutes, it was later applied as a defence to a number of offences that clearly prohibited de minimis<\/em> infractions. The assault offence found in section 265 of the Criminal Code<\/em>[31]<\/a>\u2014which Coughlan agrees captures de minimis<\/em> conduct[32]<\/a>\u2014is illustrative. That provision criminalizes any \u201cintentional, non-consensual application of force, or the threat thereof.\u201d[33]<\/a> As a result, even a truly trifling act such as a poke on the chest comes within the scope of the assault prohibition.[34]<\/a> Subsequently, trial courts have applied the de minimis<\/em> defence to a variety of offences, including theft,[35]<\/a> obstruction of justice,[36]<\/a> and breach of trust.[37]<\/a> In all these cases, however, no court has explained why de minimis<\/em> was properly transformed from a principle of statutory interpretation to a full-fledged criminal defence.<\/p>\n For de minimis<\/em> to be preserved as a defence, it ought to serve a distinct function in the criminal law. Coughlan maintains that the de minimis<\/em> defence overlaps with the defence used for ensuring prosecutorial discretion is exercised properly: abuse of process.[38]<\/a> The Supreme Court of Canada has used a variety of terms to describe an abuse of process. In Krieger v<\/em>. Law Society of Alberta<\/em>,[39]<\/a> the Court described such actions as constituting \u201cflagrant impropriety.\u201d[40]<\/a> Similarly, in R v<\/em>. Nixon<\/em>,[41]<\/a> the Court found that an abuse of process arises where there is evidence demonstrating that the Crown\u2019s decision \u201cundermines the integrity of the judicial process,\u201d[42]<\/a> \u201cresults in trial unfairness,\u201d[43]<\/a> or is an act taken for an \u201cimproper motive\u201d or out of \u201cbad faith.\u201d[44]<\/a> Most recently, the Court summarized the doctrine in R v<\/em>. Anderson<\/em>,[45]<\/a> noting that \u201cabuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and\/or the integrity of the justice system.\u201d[46]<\/a><\/p>\n Coughlan\u2019s argument has significant appeal if the de minimis<\/em> defence is concerned with the exercise of prosecutorial discretion. Indeed, assimilating the de minimis<\/em> defence into this branch of the abuse of process doctrine may well render the de minimis<\/em> defence moot, as there is nothing clearly \u201cegregious\u201d about the prosecutor\u2019s choice to bring a criminal charge that falls within the four corners of the Criminal Code<\/em>. However, I cannot agree that the de minimis<\/em> defence is about challenging the Crown\u2019s discretion to bring a particular charge. Instead, the defence concerns the judge\u2019s decision to find the accused guilty. Thus, whereas Coughlan focuses on whether a prosecution should have been brought, I think the de minimis<\/em> defence more directly asks whether a judge should find an accused guilty.[47]<\/a><\/p>\n Focusing on the latter question, the judge\u2019s decision to find an accused guilty must be consistent with the judicial function. That function includes a residual discretion for courts to stay proceedings where their actions would be inconsistent with the principles of fundamental justice.[48]<\/a> The essence of the problem with criminalizing de minimis<\/em> conduct is that it could violate the principle of fundamental justice prohibiting grossly disproportionate state conduct.[49]<\/a> In Canada (AG) v<\/em>. Bedford<\/em>,[50]<\/a> the Supreme Court of Canada explained that a law violates the gross disproportionality principle when its effects are grossly disproportionate compared to its objective.[51]<\/a> In conducting this analysis, courts need only consider the effect of the law on a single person but must presume that the law fully achieves its objective at the section 7 stage of the analysis.[52]<\/a> The extent to which the law actually achieves its objective is considered under section\u00a01.[53]<\/a><\/p>\n Applying the gross disproportionality principle in the defence context avoids the need to consider the broader ability of a law to achieve its objective. Such a consideration is necessary when challenging the constitutionality of legislation because of the relationship between the various rights provisions and section 1 of the Canadian Charter<\/em>. The latter provision requires that courts determine whether the effects of a law on all individuals\u2019 constitutionally protected rights are proportionate to the good otherwise achieved by the law.[54]<\/a> In the defence context, however, it is only necessary to consider how a law impacts the individual before the court. A judge should therefore apply the gross disproportionality principle by weighing the extent to which the law achieves its objective in a particular case against any costs imposed on the defendant as a result of being found guilty of a crime.<\/p>\n In my view, finding someone guilty for de minimis<\/em> conduct will routinely violate the gross disproportionality principle. As the Supreme Court of Canada observed in R v<\/em>. Malmo-Levine<\/em>,[55]<\/a> \u201cbeing prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual\u2019s life in such areas as job choices, travel and education. Participating in the criminal court process can also involve personal upheaval.\u201d[56]<\/a> Thus, the miniscule intrusion on a law\u2019s objective arising from a truly de minimis<\/em> act\u2014such as a tap on the chest\u2014must be weighed against the potentially life-altering effects of preventing someone from acquiring employment, travelling, or pursuing education. Moreover, the courts must consider the fact that more generic costs of instituting criminal process can be onerous for some accused\u2014especially impoverished persons\u2014as participating in the criminal process may require forgoing work, enduring childcare costs, or other personal expenses.<\/p>\n Application of the gross disproportionality principle in the de minimis<\/em> context admittedly requires a qualitatively different sort of balancing than in the Supreme Court of Canada\u2019s jurisprudence applying that principle. A group\u2019s security of the person interests are not being sacrificed to avoid the social nuisance arising from undesirable public communications.[57]<\/a> Nor is anyone\u2019s physical safety endangered because they cannot conduct their work from indoors.[58]<\/a> The laws at issue in the Bedford<\/em> case\u2014prohibitions against communicating in public for the purpose of sex work and operating a bawdy house\u2014were nevertheless able to substantially forward their objectives. In the de minimis<\/em> context, the consequences need not rise to the same levels given the law\u2019s trifling ability to further its objective. It is therefore reasonable to conclude that the usual consequences of the criminal process will be grossly disproportionate to the law\u2019s ability to achieve its objective.[59]<\/a><\/p>\n This conception of the de minimis<\/em> defence differs significantly from the judiciary\u2019s limited ability to supervise the exercise of prosecutorial discretion. When the Crown brings a de minimis<\/em> charge, the court is not preventing the prosecution from presenting its case as occurs with abuse of process applications relating to other forms of state misconduct. Consider a plea of entrapment or any form of egregious prosecutorial misconduct. In these types of cases, a stay of proceedings is entered before<\/em> the Crown can fully present its case. As such, the court is directly interfering with the Crown\u2019s ability to have the case decided on its merits. Given the neutral role of judges in the adversarial system, such interference rightly ought to be limited.[60]<\/a> In contrast, the accused pleading the de minimis<\/em> defence only asks for the charges to be stayed after<\/em> the Crown\u2019s case has been heard. At this stage, the focus of the defence is not on the prosecutor\u2019s decision to bring the charge, but rather whether the court would be acting in accordance with fundamental justice by finding the accused guilty.<\/p>\n This argument is bolstered by considering the way in which the adversarial system determines the facts upon which a defence is based. Although the Crown will endorse a particular theory of any given case, it does not know how the facts will be decided at trial. Put differently, the evidence revealed in court may be different than the evidence which formed the basis upon which the Crown made his or her decision to prosecute a case.[61]<\/a> One might counter that the Crown\u2019s decision to continue a prosecution after hearing all the evidence could provide the basis for challenging the Crown\u2019s exercise of discretion. However, such an approach still requires the Crown to make findings of fact based on competing accounts of the evidence to determine whether such an application has merit. As factual findings are the exclusive domain of the trial judge, it is preferable for the de minimis<\/em> defence to focus on the trial judge\u2019s determination of whether the accused is guilty than on the Crown\u2019s decision to prosecute the case.<\/p>\n Both Coughlan and Judge Gorman have asserted that the existence of an absolute discharge dispenses with the need to preserve the de minimis<\/em> defence. Although Coughlan does not directly rely upon Judge Gorman\u2019s criticisms, a review of the latter\u2019s views can help better understand Coughlan\u2019s proposal to abandon the de minimis<\/em> defence in light of the availability of an absolute discharge. Writing in R v<\/em>. Gale<\/em>,[62]<\/a> Judge Gorman places significance on the purpose of the de minimis<\/em> defence as originally stated in The Reward<\/em>, namely, to avoid \u201cinflexibly severe\u201d penalties.[63]<\/a>\u00a0For Judge Gorman, the de minimis<\/em> defence\u2019s laudable aim may be achieved without acquitting the accused outright. The trial judge may instead grant the accused an absolute discharge under section 730 of the Criminal Code<\/em>.[64]<\/a> The availability of such a sentence avoids imposing any punishment at all, thereby serving the very purpose of the de minimis<\/em> defence.<\/p>\n Judge Gorman\u2019s argument for abandoning the de minimis<\/em> defence relies on the wording of subsection 8(3) of the Criminal Code<\/em>. That subsection preserves justifications, excuses, and other defences \u201cexcept in so far as they are altered by or are inconsistent with … [an] Act of Parliament.\u201d[65]<\/a> As a discharge is available for any offence to which the de minimis<\/em> defence could feasibly be applied,[66]<\/a> the de minimis<\/em> defence is arguably inconsistent with section 730 of the Criminal Code<\/em>.[67]<\/a> As I have argued elsewhere, however, just because two laws may be applied to achieve the same end does not render those laws inconsistent with each other. The de minimis<\/em> defence may become superfluous<\/em> in light of the availability of an absolute discharge, but subsection 8(3) requires an inconsistency, which is a higher bar to meet.[68]<\/a><\/p>\n More fundamentally, it should also be questioned whether the initial purpose of the de minimis<\/em> principle\u2014avoiding \u201cinflexibly severe\u201d penalties[69]<\/a>\u2014ought to be transposed onto the criminal defence domain. In my view, the operation of the de minimis<\/em> defence in the criminal law serves a different function than in the civil law context. Given the significant force that is brought upon a person when the state institutes criminal process, the state ought to be required to justify using that process at all, not just any penalty ultimately imposed. These effects include the stigma of being branded a criminal, which can have far reaching consequences in terms of employment, education, and travel, as well as personal upheaval resulting from proceeding through the criminal justice system.[70]<\/a> Unlike civil proceedings, failure to appear in court or obey conditions of release will also result in further criminal charges.[71]<\/a><\/p>\n Coughlan nevertheless suggests that most of these consequences are avoided by utilizing the absolute discharge provision. As he observes, the effect of imposing an absolute discharge under section 730 of the Criminal Code<\/em> is that the person \u201cshall be deemed not to have been convicted of [an] offence.\u201d[72]<\/a> For Coughlan, this aspect of the absolute discharge provision renders it functionally equivalent to the de minimis<\/em> defence as the accused is not actually convicted.[73]<\/a> From a conceptual standpoint, Coughlan also observes that an absolute discharge \u201cserves the goal of preserving respect for the administration of justice … by showing that the system as a whole is able to properly acknowledge the triviality of some breaches.\u201d[74]<\/a><\/p>\n There are nevertheless important differences between being found not guilty and being granted an absolute discharge. Despite the wording of the discharge provisions, Allan Manson observes that a discharge is not \u201ctantamount to an acquittal since the finding of guilt is not expunged.\u201d[75]<\/a> This fact may have implications with respect to one\u2019s ability to receive employment, pursue education, or travel as a result of a discharge. Although a person who is granted an absolute discharge may answer \u201cno\u201d to the question of whether they have been convicted of a crime, they must answer \u201cyes\u201d to the question of whether they have been found guilty of a crime.[76]<\/a> If an employer, educator, or border agency uses the latter type of question, this may have a broad and difficult to predict effect on a person\u2019s livelihood.<\/p>\n In addition, a discharge results in a criminal record. The Criminal Records Act<\/em>[77]<\/a> states that an absolute discharge will remain on the offender\u2019s record for one year.[78]<\/a> However, the CRA<\/em> only establishes this requirement for the Royal Canadian Mounted Police.[79]<\/a> Other provincial police forces are therefore not compelled to take such action, resulting in discharges being more permanent.[80]<\/a> Moreover, a prosecutor is legally permitted to apply for the consent of the Solicitor General to provide evidence of a discharge even after the one-year period has elapsed.[81]<\/a> This ability to raise prior discharges in criminal proceedings may impact future decisions by the Crown. For instance, an offence that might otherwise be mediated under section 717 of the Criminal Code<\/em> could feasibly be prosecuted because the prosecutor is aware of a previous discharge. Some courts have also used prior evidence of a discharge as an aggravating factor in sentencing,[82]<\/a> or as a \u201cprevious conviction\u201d for the purpose of seeking a greater punishment in subsequent proceedings under subsection 727(1) of the Criminal Code<\/em>.[83]<\/a><\/p>\n Given the various potential effects of receiving an absolute discharge, I cannot agree with Coughlan that an absolute discharge and a de minimis<\/em> defence are functionally equivalent. Instead, there are distinct roles for both the de minimis<\/em> defence and the absolute discharge provision. Conduct that is truly de minimis<\/em> ought not result in a finding of guilt. Conduct above the de minimis <\/em>threshold should nevertheless be granted an absolute discharge if balancing the various sentencing principles warrants such a sanction. Preserving the de minimis<\/em> defence would therefore allow the accused to avoid a myriad of potential consequences in future proceedings or in their personal and professional lives.<\/p>\n Coughlan\u2019s final argument for abandoning the de minimis<\/em> defence is premised on an analogy to constitutional exemptions.[84]<\/a> At the outset, it is important to clarify what Coughlan means by a constitutional exemption. It is not uncommon for a law to be found unconstitutional, but that the declaration of invalidity be suspended for a short period. During that time, courts will sometimes exempt particular people from application of the law during the suspended declaration of invalidity.[85]<\/a> This is not the type of exemption Coughlan is referencing. Instead, he is concerned with instances where a statute is found unconstitutional but, to preserve its constitutionality, the accused and others whom the statute impacts in an unconstitutional manner are exempted from the statute\u2019s application on a case-by-case basis.[86]<\/a><\/p>\n The Supreme Court of Canada has consistently rejected the latter type of exemption as a remedy under section 52 of the Constitution Act, 1982<\/em>.[87]<\/a> For Coughlan, the de minimis<\/em> defence is no different than a constitutional exemption.[88]<\/a> He is right in one sense. The de minimis<\/em> defence\u2014as with all defences\u2014are exemptions to criminal statutes. Thus, both defences and constitutional exemptions serve the function of exempting a person from a particular law. However, I do not think this similarity is sufficient to require de minimis<\/em> to be abandoned as a defence. My reasoning broadly relates to the role of defences in the Anglo-American structure of the criminal law and the way that defences necessarily impact how legislative intent is interpreted.<\/p>\n It is trite to say that offences catch conduct that is not criminal and cannot reasonably be expected to be drafted to avoid these consequences. That is why defences exist. Readily accepted defences such as self-defence, duress, and necessity all ensure that instances of justifiable or excusable conduct do not result in convictions.[89]<\/a> As a result, it is illogical to assess an offence\u2019s scope without understanding the applicability of defences. To conclude otherwise would lead to absurd results, especially since defences have been constitutionalized under section 7 of the Canadian Charter<\/em>.[90]<\/a> If offences are constitutionally examined without acknowledging the role of defences, then every offence would violate section 7 of the Canadian Charter<\/em>. This is true because every offence can feasibly be committed in a manner that is either excusable (i.e., \u201cmorally involuntary\u201d)[91]<\/a> or justified (i.e., morally permissible or innocent).[92]<\/a><\/p>\n Different principles were at play when the Supreme Court of Canada considered the constitutionality of granting constitutional exemptions. For instance, litigants have maintained that constitutional exemptions constitute a remedy for unconstitutional mandatory minimum sentences, as was argued in the leading case of R v<\/em>. Ferguson<\/em>.[93]<\/a> An intrinsic feature of mandatory minimum sentences is that they are mandatory. In other words, Parliament in no way contemplated allowing for any exceptions to the minimum sentence. Therefore, granting an exemption to a mandatory minimum sentence significantly intrudes into the legislative realm.[94]<\/a> This is the heart of the reason why constitutional exemptions are impermissible.[95]<\/a> Yet, criminal defences are not at all similar in this sense. When Parliament enacts offences, it does so with knowledge that defence-based \u201cexemptions\u201d will occur as a matter of course.<\/p>\n Coughlan also maintains that constitutional exemptions raise issues relating to the need to uphold the rule of law.[96]<\/a> As the Supreme Court of Canada held in Ferguson<\/em>, \u201c[t]he divergence between the law on the books and the law as applied \u2014 and the uncertainty and unpredictability that result \u2014 exacts a price paid in the coin of injustice.\u201d[97]<\/a> Most notably, constitutional exemptions undermine the rule of law by impairing the ability of citizens to know the law.[98]<\/a> Again, however, Coughlan\u2019s comparison to criminal defences is distinguishable. Any reasonably informed citizen knows that there are applicable defences to criminal offences. Citizens can therefore be expected to govern their conduct accordingly. This is not the case with constitutional exemptions to something like a mandatory minimum sentence. Crafting exemptions to such mandatory provisions would create clear confusion as the law on the books would say one thing while judges would maintain the power to ignore the law if the judge deems fit. Given this difference, preserving a de minimis<\/em> defence cannot reasonably be said to undermine the rule of law.<\/p>\n It is prudent to conclude by providing an affirmative case for why I think de minimis<\/em> constitutes a defence in criminal law. If it is not a defence as that term is legally understood,[99]<\/a> my argument is significantly weakened. My own work prima facie<\/em> works against me at this juncture. Elsewhere I maintain that the de minimis<\/em> defence does not constitute an excuse or justification as those terms have been defined in Canada.[100]<\/a> Excuses focus on the \u201cmorally involuntary\u201d nature of an accused\u2019s actions, and the de minimis<\/em> defence clearly involves voluntary actions.[101]<\/a> Justifications, according to the Supreme Court of Canada, connote \u201crightful\u201d conduct.[102]<\/a> As the essence of the de minimis<\/em> defence is that the accused\u2019s actions were not \u201cwrongful\u201d enough to warrant criminal sanction, it again does not fit within the definition of a justification.[103]<\/a><\/p>\n Fortunately, justifications and excuses are not the only recognized categories of criminal defences. In my view, the de minimis<\/em> defence fits comfortably into the category of what Andrew Botterell calls a \u201cprocedural\u201d defence.[104]<\/a> Botterell cites the entrapment defence and the prohibition against double jeopardy as examples of this category of defence.[105]<\/a> He also distinguishes justifications, excuses, and procedural defences from a fourth category of defences: exemptions. The latter category is concerned with statutory bars to prosecution such as the defence of diplomatic immunity.[106]<\/a><\/p>\n Botterell does not elaborate upon what distinguishes procedural defences from justifications, excuses, and exemptions. This is no doubt because his article is primarily concerned with the distinction between justifications and excuses.[107]<\/a> Nevertheless, I think a more robust conceptualization of procedural defences vis-\u00e0-vis the other three categories of defences is critical to understanding the place of the de minimis<\/em> defence in the criminal law. As John Gardner explains, justifications and excuses broadly turn on the reasons an accused provides for committing a criminal act.[108]<\/a> This is not the only conceptualization of these categories of defences,[109]<\/a> but it seems to be a reasonable explanation. The accused pleading self-defence, duress, or necessity admits to committing the offence but asks to be acquitted as they offer a coherent moral reason for their actions. In essence, the justified or excused accused claims that they committed the crime to protect their person, some other person, or property.<\/p>\n An accused pleading a procedural defence does not offer a reason for committing an offence. Instead, they offer a reason for why the state ought not be permitted to continue its prosecution against them. Relying on Botterell\u2019s two examples, an accused who has been entrapped by police claims that random virtue testing of citizens is not a proper state function.[110]<\/a> To deter such conduct, the court enters a stay of proceedings. Similarly, an accused who was previously acquitted of an offence claims that the prosecutor acts inappropriately by attempting to prosecute the accused again for the same crime. To conclude otherwise would leave citizens perpetually liable for their conduct.<\/p>\n Understood in this way, the distinction between justifications or excuses and procedural defences is readily discernible. Justifications or excuses turn on the reasons provided by the accused for committing a crime, while procedural defences assess the actions of the state in exercising its criminal law powers. These three categories of defences may also be distinguished from the fourth category: exemptions. Unlike the first three categories, there are no definitive moral reasons for granting an exemption. Instead, a defence like diplomatic immunity is based strictly on policy reasons devised by legislatures. If diplomatic immunity were not a defence in Canada, other countries likely would not grant Canada\u2019s diplomats a similar immunity. To protect Canadian diplomats from arbitrary exercises of foreign authority, it is therefore necessary to provide this more general protection to other countries\u2019 diplomats as well. This rationale, however, is strictly based on policy reasons, not moral reasons.<\/p>\n The de minimis<\/em> defence cannot be an exemption as it is not sanctioned by a legislature and, as Coughlan rightly observes, it would be inappropriate for a court to assert a defence for policy reasons alone.[111]<\/a> Fortunately, the de minimis<\/em> defence fits squarely into the rationale for procedural\u2011based defences: it ensures that state conduct conforms with basic principles of justice. Unlike entrapment, however, the defence is not concerned with police actions. Nor is it concerned with the actions of prosecutors. Instead, the de minimis<\/em> defence is concerned with the judge\u2019s choice to find an accused guilty. I see no reason why a procedural defence cannot be based on state actions taken by either the police, prosecution, or judiciary. If true, then the de minimis<\/em> defence fits comfortably as a procedural defence as its primary focus is to ensure a state actor (the judge) does not render a decision that is contrary to fundamental justice.<\/p>\n Unfortunately, in considering what constitutes a defence in Canadian criminal law, the Supreme Court of Canada has not adequately distinguished between these various categories. Most notable is the Court\u2019s jurisprudence defining the terms justification, excuse, and \u201cdefence to a charge\u201d in subsection 8(3) of the Criminal Code<\/em>.[112]<\/a> Although the Court has provided a reasonably clear definition of the former categories,[113]<\/a> it has provided very little substance to the \u201cdefence to a charge\u201d category. The Court\u2019s decision in R v<\/em>. Mack<\/em>[114]<\/a> is illustrative. The Crown argued that the exclusive rationale for the entrapment defence lied \u201cin the inherent jurisdiction of the court to prevent an abuse of its own processes.\u201d[115]<\/a> The accused maintained that entrapment could also bear on culpability and thus could be conceptualized as an excuse or justification.[116]<\/a> The Court convincingly concluded that entrapment does not fall into the excuse or justification categories as it does not concern culpability, but instead turns solely on the propriety of state action.[117]<\/a><\/p>\n Curiously, the Court does not conclude that the entrapment defence might be preserved as a \u201cdefence to a charge\u201d under subsection 8(3) of the Criminal Code<\/em>. Instead, it preferred to conclude that the entrapment defence derived from the Court\u2019s inherent jurisdiction to stay proceedings where there is an abuse of process. It is simply unclear why entrapment or any other instances of abuse of process could not constitute a \u201cdefence to a charge\u201d under subsection 8(3). What else could that term possibly mean if not the only other affirmative type of plea that bars an accused from being found guilty? It might therefore be useful to think of procedural defences\u2014or, perhaps more accurately, abuse of process defences\u2014as a distinct category of defences that are preserved under subsection 8(3) of the Criminal Code<\/em>.<\/p>\n It would nevertheless be inappropriate to subsume the abuse of process defences I have identified into one broader defence. This is because the factors underlying each defence are informed by the unique circumstances giving rise to each defence. With respect to entrapment, which arises at an early stage of the criminal process, the officer must simply have a reasonable suspicion that the accused is involved in particular criminal activity or act pursuant to a bona fide<\/em> inquiry before providing the accused with the opportunity to commit an offence.[118]<\/a> The limited jeopardy facing the accused and the fact that the state is not compelling the accused to do anything at this stage sets a relatively low bar for police to avoid a finding of abuse of process.<\/p>\n With prosecutorial misconduct, the state has brought charges against the accused and therefore has increased its intrusion onto the accused\u2019s liberty interests. The prosecutor is thus held to a higher standard than the investigating police officer. They must have at least a prima facie<\/em> case against the accused before bringing a prosecution, and they must abide more generally with the duties of the Crown operating within the adversarial system of justice. The latter and more demanding context provide the relevant considerations for determining when a prosecutor\u2019s actions will amount to an abuse of process. Any actions deemed substantially prejudicial to the administration of justice\u2014such as tampering with evidence or deliberately failing to disclose exculpatory evidence\u2014will result in a stay of proceedings.<\/p>\nI. \u00a0 The Absurdity Principle<\/h1>\n
II. Abuse of Process<\/h1>\n
III. Absolute Discharges<\/h1>\n
IV. Constitutional Exemptions<\/h1>\n
V. Conceptualizing the De Minimis <\/em>Defence<\/h1>\n