Criminal Trial and Appeal Lawyers

Elbowgate: was it really as assault? Interview with CBC’s Mark Gollom

During a bit of a dustup last week in the House of Commons, Prime Minister Justin Trudeau grabbed an opposition MP’s arm without that person’s consent. His elbow also hit another opposition MP in the chest by accident. The opposition has made a lot of commotion about the whole incident, and the Prime Minister has made numerous apologies about his behaviour. This will probably all die down very soon. However, some opposition MPs have described the Prime Minister’s behaviour as a criminal assault.

Was it, though?

As I explained to CBC’s Mark Gollom in this interview, the answer may be more complicated than you would think.

The main definition for a criminal assault is quite broad: a person intentionally uses force on another person without their consent. A lot of behaviour can get caught up in that definition, including behaviour the public wouldn’t normally treat as an assault.

If a person is on a crowded train or bus, and pushes past a few people to reach an less-crowded area, did that person commit an assault? Well, pushing a person is using force on them. And the pushing was intentional. And the person who was pushed probably didn’t consent to being pushed.

But is pushing past a person on a crowded bus or train something we want in the criminal courts? Of course not. So how does the criminal justice system deal with that?

The main way is the application of a legal doctrine called de minimus. It’s a legal doctrine that says that although certain behaviours meet the legal definition of a crime (or a tort), the behaviour is so minimal such that the courts should not be involved. If that pushing example ever made its way to trial, it would be a defence that could be relied on (among other defences). In any event, it is unlikely the police would ever lay a charge in that situation, nor would the Crown’s office proceed with the case.

So while the Prime Minister’s intentional grab of an opposition MP’s arm without that MP’s consent would meet all the technical requirements of an assault, it would be so minimal that it would never actually lead to a charge or finding of guilt.

How about the Prime Minister’s accidental ‘elbowing’ of another opposition MP? She has claims, among other claims, that it stunned her. I make not comment about whether the opposition parties, and this MP in particular, are blowing it out of proportion. The fact is, no matter what the injuries are, it would never be a crime. That is because the Prime Minister’s use of force was accidental, not intentional. It does not matter if his behaviour was reckless. The only question is: did the Prime Minister intentionally use force on that person? If the answer is no, then it is not an assault. (I’ll leave out an analysis of transferable intent, which needlessly complicates this specific, simple situation.) No one is disputing the elbowing was an accident. Therefore, it was not a crime, even if there were more serious injuries.

Maybe it’s time for our politicians to focus on more serious issues that the House needs to address?