Flipping the bird is a form of expression, not a crime

Flipping the bird is a form of expression, not a crime

Flipping the bird is a form of expression, not a crime

A judge in Montreal made the right call by ruling that giving someone the middle finger is not a crime, but is in fact “a God-given, Charter-enshrined right that belongs to every red-blooded Canadian.”

As Judge Dennis Galiatsatos noted in his February ruling, flipping the bird at someone “may not be civil, it may not be polite, it may not be gentlemanly. Nevertheless, it does not trigger criminal liability. Offending someone is not a crime.”

The case involved neighbours who lived on a small street of just 10 houses in Beaconsfield, Que. According to the judgement, police arrested Neall Epstein, a 45-year-old teacher as he returned home from a walk, and charged him with criminal harassment and uttering threats. That came after neighbour Michael Naccache complained that Epstein gave him two middle fingers and made a throat-slashing gesture toward him.

However, those alleged actions came after Naccahe swore at Epstein and threatened him while holding a power tool "in a menacing way," the judgement notes. The incident was the culmination of a series of interactions between the two men and members of their families.

This case shows how some people can be offended by trivial matters. And I agree with Galiatsatos when he states that “offending someone is not a crime. It is an integral component of one’s freedom of expression.”

Flipping the bird to someone is part of freedom of speech and the right to express your opinion. You're not actually threatening anybody. Some actions are more of a threat, such as drawing a finger across your throat to show you want to slash someone’s jugular. That is a clear threat.

The crime of uttering threats

In addressing Epstein’s charge for uttering threats, Galiatsatos acknowledged, “it is the concept, or idea, of the threat, and not the exact words used, which constitute the offence. The exact words do not matter, as long as the intended meaning of the threat is clear. A gesture, without words, may suffice … the gesture of slitting one’s throat with a finger or thumb, depending on the circumstances, may well amount to a death threat under s. 264.1 of the Code. Indeed, it is a common method of committing the offence.”

But in this case, the judge said he believed Epstein’s denial that he made a throat-slitting gesture. So all we are left with is his decision to give his neighbour the middle finger. I can understand how people may be offended to be at the receiving of that gesture, but that doesn’t mean anyone should be arrested.

Flipping the bird is nothing more than an expression of frustration. And it's a better expression than having somebody yell vulgarities where other people not involved in the conflict can hear them.

In this scenario, what other options did Epstein have? He could have started a fight, but that would have only escalated the conflict. I think that giving his neighbour the middle finger and walking away, as he did, was the best option.

The crime of criminal harassment

In addressing Epstein’s charge of criminal harassment, Galiatsatos noted that the Quebec Court of Appeal has stated that the term harass “denotes conduct that is more than just disturbing or unsettling. The provision requires that the complainant be ‘tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered.’

“These concepts go beyond feeling ‘vexed, disquieted or annoyed,” he wrote, adding “it is not necessary for victims of harassment to suffer ill health or major disruption in their lives before obtaining the protection of s. 264.”

He said those principles are essential, as “they ensure that the strong arm of the criminal law is not unleashed on individuals for the slightest perceived insult. Without a baseline objective requirement, oversensitive people might be tempted to call the police every time someone ‘looked at them wrong … it must be established that the complainant’s fear was, in all the circumstances, reasonable.”

A case not worth the court’s time

In “resoundingly acquitting the accused,” Galiatsatos questioned why this case was even brought to court.

“It is deplorable that the complainants have weaponized the criminal justice system in an attempt to exert revenge on an innocent man for some perceived slights that are, at best, trivial peeves,” he stated.

In his concluding remarks, Galiatsatos made it clear he wished he could literally — not just figuratively — throw the case out of court. As he wrote, “In the modern-day vernacular, people often refer to a criminal case ‘being thrown out.’ Obviously, this is little more than a figurative expression. Cases aren’t actually thrown out, in the literal or physical sense. Nevertheless, in the specific circumstances of this case, the court is inclined to actually take the file and throw it out the window, which is the only way to adequately express my bewilderment with the fact that Mr. Epstein was subjected to an arrest and a fulsome criminal prosecution. Alas, the courtrooms of the Montreal courthouse do not have windows. A mere verdict of acquittal will have to suffice.”

Contact me for assistance

I have defended clients in courtrooms across the Ottawa region, working to ensure they receive a fair sentence. If you, a family member or a friend has been charged with a criminal offence – such as criminal harassment, uttering threats or anything else – contact me for a free consultation with no obligation.

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