The Queen's Law Journal (QLJ) recognized the significant contributions of Professor Don Stuart to criminal and evidence law.

With its March 19 panel, “Contesting Criminal Law: An Event Honouring Professor Don Stuart,” the QLJ convened leading criminal law and evidence scholars Steve Coughlan (Dalhousie), Janine Benedet (UBC) and Lisa Dufraimont (Osgoode) to present their forthcoming papers, for a symposium Journal issue coming out this spring in Stuart’s honour. 

Professor Lisa Kelly, Visitors’ Committee co-chair, will guest edit all panelists’ papers for this volume to be released in May. The panel and special edition Journal were made possible by the Stuart Delisle Criminal Law Fund, which received an influential gift of $250,000 last year from renowned defence lawyer Don Bayne, Law’69

The talk’s discussion topics included the existence of a de minimis defence in criminal law, mandatory minimum sentences in child sexual assault and abuse cases, and the relevancy of sexual history evidence in relationship cases.

In opening the conversation, Coughlan asserted that de minimis non curat lex – a private law rule that the law need not be enforced in trivial matters – should not be used as a defence in criminal law.

“There’s a proper role for de minimis,” explained Coughlan. “In interpreting statutes, we should apply them so as not to capture trivial violations. The notion of a defence, however, is a dispensing power. A de minimis defence would allow a judge to say, ‘The elements of this offence were proven but in such a minor way that I will acquit you.’ It’s in that application that it ought not be allowed. Either we place our faith in the good sense of Crown prosecutors, or we don’t. We should stick to that here.”

For her part, Benedet argued that mandatory minimum sentences in child sexual abuse cases have done more harm than good. 

“For many years, few prosecutions were conducted in matters related to child abuse,” elaborated Benedet. “Decades’ worth of literature minimized the harm that sexual abuse inflicted on child victims, by blaming the victims, limiting the offenders to so-called homosexual pedophiles, and making assumptions as to how an abused child ought to behave. Yet, today’s overreliance on mandatory minimums fails to address the problematic reasoning in sentencing decisions that continues to rely on these myths and stereotypes.”

Finally, Dufraimont elucidated her views on the vague middle ground between sexual assault myths/stereotypes and legitimate reasons applicable for a defence.

“Expectations have been placed unfairly on sexual assault complainants, making prosecutions so difficult to conduct, and convictions so challenging to obtain,” said Dufraimont. “What interests me most are the situations where it’s difficult to differentiate the myths and a defence’s acceptable line of reasoning. Which lines in the law are courts still struggling to draw? Which lines of argument can a judge or jury still use, and what is a prohibited stereotype? We must be clear on these lines. Otherwise, we cannot expect judges to clearly explain and enforce them.”

On the academics who travelled from across Canada to honour him, Stuart said he appreciated their eloquence and skill in expressing their ideas, despite their occasional disagreement on the issues.

“It’s amazing to me how these people can write so quickly, so strongly and so persuasively, and yet we don’t always have to agree,” shared Stuart. 

But on Stuart’s reputation in the criminal law and evidence community, Coughlan summarized it best: “Among Canadian criminal academics, there’s Don – and then there’s everybody else.”

By Justin Murphy