Why making a criminal case over 'flipping the bird' raises concerns with some Quebec lawyers

After a Quebec judge declared flipping the bird a "God-given" right that belongs to all Canadians and acquitted a Montreal-area man of criminal harassment and uttering threats, two defence lawyers say the ruling sends an important message about frivolous prosecution.

Roberta Harthel-Coté, a Montreal defence lawyer, said this type of case — rooted in a dispute between neighbours — lands in criminal court far too often.

These cases take up the legal system's time and resources while also having a "direct impact on people's employment and life and reputation over something that doesn't belong in that system in the first place."

In his Feb. 24 ruling, Judge Dennis Galiatsatos wrote that not only was Neall Epstein not guilty, the fact that he was arrested and prosecuted at all was a bewildering injustice.

This case was about two neighbours who had a series of minor disputes over several weeks, exchanging insults and swear words. Eventually police charged one neighbour with criminal harassment and uttering threats.

The case went to trial, but video evidence demonstrated the allegations were false, and the neighbour was acquitted. In his blistering decision, the judge said it was deplorable that the criminal justice system had been "weaponized" for such a trivial matter.

The Montreal police service said it is analyzing the decision to arrest Epstein and declined to comment further.

Calling for more discretion

Audrey Roy-Cloutier, spokesperson for the Crown, said before initiating prosecution, the prosecutor must be convinced that there's a reasonable prospect of conviction. 

Following the testimony of the accused during this trial, the prosecutor concluded that the evidence presented in court did not meet that required threshold, namely a demonstration beyond any reasonable doubt of the defendant's guilt, explained Roy-Cloutier. 

It was in that context that the prosecutor invited the judge to acquit the accused and while the Crown may not agree with some of the court's assertions in the decision, the ruling will not be appealed, she said.

However, Harthel-Coté said there needs to be more discretion and more discernment used by the prosecution before and during these proceedings.

"They don't look at the file. They don't even know the case until two or three days before the trial itself," she said.

These minor neighbour disputes often get dragged through the criminal court system when, at best, the matter should be settled in civil court instead, she said.

Prioritizing cases due to overload

Harthel-Coté said she can't even estimate how many cases she has had that end similarly to that of these neighbours from Beaconsfield, Que., whose quarrelling had been escalating for some time. 

This ruling is drawing attention at a time when Quebec's criminal justice system is prioritizing cases based on the severity of the crime, ensuring more serious offences are pushed through while minor offences are pigeonholed — eventually stayed.

This is designed to relieve some of the pressure on a system that is overloaded with criminal cases.

Cases involving murder, aggravated assault, sexual and conjugal violence and the mistreatment of children and seniors will be given priority when trial deadlines loom, according to a memo sent out last month by the Directeur des poursuites criminelles et pénales (DPCP).

The Crown wants to ensure these types of serious offences aren't stayed due to the Supreme Court of Canada's Jordan decision which establishes time limits for trials once charges are laid, the memo said.

Defence lawyer Eric Sutton said it's somewhat "shocking, given our limited resources, that this case found its way into the system and channeled all the way through to a criminal trial two years later."

He said Galiatsatos's decision sends a message to police and prosecutors.

"They should be very wary when criminal complaints are filed where there's no real substantial proof that they are valid," said Sutton.

"They've just got to be very prudent about looking at the evidence and not just taking someone's word as necessarily being sufficient to ground a prosecution."