FHRITP charges serve as deterrent — even without a conviction

Although several police forces have said they could lay charges in FHRITP cases — including mischief and causing a disturbance — whether that results in an actual conviction doesn't matter, a criminal lawyer says.

It's ultimately a matter of deterrence.

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Boris Bytensky, a partner at Adler Bytensky Prutschi Shikhman in Toronto, said police could arguably lay a number of charges for yelling "f--k her right in the p---y," including mischief or causing a disturbance.

"Right now, people see this as a big prank, and now finally the dialogue is starting to show that it's not harmless," he said.

"If it goes even further and there is public reporting of a guy being charged, hopefully behaviour will start to change."

Whether a person is found guilty would ultimately depend on a number of different factors, said Bytensky, but a mischief conviction for a first-time offender would likely only result in probation.

"Nobody is going to go to jail for this, I don't think," he said. "It's not going to be the threat of jail that scares them, it's the threat of being labelled a criminal."

The charges would undoubtedly raise a freedom of expression argument, he said, but everything in the Charter of Rights and Freedoms is subject to reasonable limits.

"Given the current climate and media response and public response to what's happened, I don't think police will be roundly criticized for starting to charge people," he said.

Assault charges could also be warranted, but only in cases where a person pushed a reporter or violently grabbed a microphone, he said.

The FHRITP phenomenon has been around for months, but drew international coverage this week when CityNews reporter Shauna Hunt confronted a group of men after one of them shouted the offensive phrase in Toronto.

Calgary police on Thursday ticketed a man accused of shouting the slur from a truck at CBC reporter Meghan Grant, who was filming on the street. The man, who was a passenger in a vehicle at the time, was charged under the Alberta Traffic Safety Act with performing or engaging "in any stunt or other activity that is likely to distract, startle or interfere with users of the highway." 

He can pay a $402 fine or fight it in court. 

'Judicial reluctance'

A number of police forces across the country, including those in Calgary and Montreal, have said they would be willing to lay criminal charges in FHRITP cases.

Kingston police on Wednesday tweeted that the media shouldn't have to deal with the issue and that causing a disturbance "seems to apply."

Meaghan Gray, a Toronto police spokeswoman, said the force would investigate a complaint in FHRITP cases to determine if charges were appropriate, including breach of the peace or causing a disturbance. 

She said the police have not received any requests to investigate such cases. 

Gray also said detectives had spoken with Hunt and told her, based on advice from the Crown attorney, that charges wouldn't be warranted. 

There are grounds for charging people who shout FHRITP but courts have generally only been willing to criminalize speech in narrow cases that can be justified using Section 1 of the charter, said Michael Lacy, a partner at Greenspan Partners in Toronto.

"Were it to go to trial, there would be a judicial reluctance to convict people, especially if it's not sort of a repetitive behaviour," he said.

Although the offensive internet meme happens frequently — all too frequently based on the experience of CBC reporters — it doesn't seem to be the same individual doing it over and over again, he said.

"I think exposing the trend the way the reporter did and exposing the identity of the people who are making these ridiculously offensive comments, I think, is having the desired effect," he said.

"The social stigma now with having said that, I think, is a better way of approaching this socially inappropriate behaviour."

Charges a last resort

Criminal law is often a blunt instrument when it's used to address social issues, said Michael Spratt,
a partner at Abergel Goldstein & Partners in Ottawa.

"Despite the deplorable conduct here, I think there's a good argument to say that there shouldn't be criminal charges because criminal law should be applied cautiously and with restraint," he said. 

It should only be used as a last resort, Spratt said. 

And in the case of at least one of the men, the social stigma from being identified in the video has already led to severe consequences. 

Shawn Simoes was fired from his job as an engineer at Hydro One after he was identified as one of the men in the recent FHRITP video. He didn't use the phrase but defended its use while also using offensive language. 

"It should be recognized that this a borderline case in terms of criminal punishment," Spratt said. "This isn't shouting fire in a crowded movie theatre, but being a misogynistic, odious person."

Police can lay charges in incidents even without a complainant, although some police forces have been hesitant to do so in some cases without having a specific victim.

Having someone come forward would likely increase the chance that they do so, said Bytensky. 

If police decide to start laying charges, it should be a simple matter to find the accused due to the very nature of the FHRITP phenomenon, where men knowingly shout the phrase into a TV camera, he said. 

"They aren't hard to identify because they are captured on tape," Bytensky said.