R. v. Penton, 2020 NLSC 98

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Penton , 2020 NLSC 98 Date : July 09, 2020 Docket : 201801G1988 Her Majesty The Queen v. Justin Penton Before: Justice Garrett A. Handrigan On Appeal From: A Decision of Judge Colin Flynn in R. v. Penton , [2018] N.J. No. 57 [N.L. (Prov. Ct.)] dated February 20, 2018 Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 24, 2020

Summary: Justin Penton shouted the words represented by the acronym “FHRITP” at Heather Gillis, a photojournalist with NTV News as she was interviewing Danny Breen, a St. John’s City Councillor. The police charged Mr. Penton with causing a disturbance and a Provincial Court judge dismissed the charge. The trial judge found the words that Mr. Penton uttered caused emotional upset to both Ms. Gillis and Mr. Breen. He also found that the shouting interrupted momentarily a follow-up conversation the parties were having about the interview, which had just ended. But the trial judge was not satisfied that the words caused a disturbance within the meaning of section 175(1) (

a) of the Criminal Code . The Crown appealed. The Court dismissed the appeal. It found that the trial judge did not err in his findings of fact or law. The Court accepted the trial judge’s conclusion that Mr. Penton’s utterance caused only a transitory interference with the work Ms. Gillis was doing with Mr. Breen. It also accepted the trial judge’s finding that Mr. Penton’s shouting did not affect Ms. Gillis and Mr. Breen, beyond the emotional upset and embarrassment that both said they felt. In effect, Mr. Penton’s words did not cause a significant interference with either Ms. Gillis or Mr.

Breen or any other member of the public, at the time when and in the place where Mr. Penton shouted them. Appearances: Richard L. Deveau Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: Furlong Estate v. Newfoundland Light & Power Co., 2005 NLCA 25; Green v. Green, 2005 NLCA 29;Canada (Director of Investigation & Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748; R. v. Lohnes, (SCC), [1992] 1 S.C.R. 167; Henderson v. R., (SCC), [1948] S.C.R. 226; R. v. Ancio, [1984] 2 S.C.R. 225;R. v.

M.L., 2019 NLCA 33 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46 TEXTS CONSIDERED: Causing a Disturbance, The Criminal Law Quarterly, 20 Crim. L.Q. i (1977-78) REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On February 20, 2018, a Provincial Court Judge acquitted Justin Penton of causing a disturbance, contrary to section 175(1)(a)(

i) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The police charged Mr. Penton with the offence from an incident on April 24,2017 when he shouted the words represented by the acronym “FHRITP” at Heather Gillis, a photojournalist. In effect, the trial judgesaid “…there was no externally manifested disturbance…” from Mr. Penton’s utterance, “as there was no interference with the ordinaryand customary use of the premises at the time and place in question”; even though Ms. Gillis and her interviewee were either“humiliated, embarrassed, and disgusted” by what Mr. Penton shouted at Ms.

Gillis, or at the very least “uncomfortable” with it. [2] The Crown appealed Mr. Penton’s acquittal claiming variously that the trial judge erred: 1) by limiting the extent of the alleged disturbance to be just an emotional upset and a momentary interruption in conversation; 2) in its narrow

interpretation and application of the Supreme Court of Canada decision in R. v. Lohnes; and 3) in not recognizing the different requisite elements for the complete offence of causing a disturbance and an attempt pursuant to s.463 of the Criminal Code”. [3] I heard the Crown’s appeal on June 23, 2020 and reserved my judgment until now. The Issues [4] The Crown’s appeal raises these issues: 1) Did the trial judge err as the Crown alleges?

2) What is the standard of review that applies to the Crown’s claims of how the trial judge erred? The Law Standard of Review [5] Almost two decades ago now, our Court of Appeal restated the standards of review that apply to questions of law, questions offact, questions of mixed fact and law and inferences of fact when they are raised on appeal. The restatement appears in Furlong Estate v.Newfoundland Light & Power Co., 2005 NLCA 25 and Green v. Green, 2005 NLCA 29.

These are the standards that I will apply to thisappeal: • For questions of law, correctness; • For questions of fact, "palpable and overriding error"; and • For questions of mixed fact and law and inferences of fact, generally "palpable and overriding error", but this may vary,depending on the inferences or the mixture of fact and law. [6] Some brief elaboration of these standards will assist in the following discussion. "Correctness" is the standard that applies toquestions of law.

It is a lower standard than "palpable and overriding error" and permits appellate judges to substitute their own findingsfor those of trial judges, if they find that the latter misconstrued the law. [7] The search for "palpable and overriding error" in a trial judge's reasoning raises the bar considerably. Appeal courts invariablyshow great deference to trial judges on findings of fact, including the inferences to be drawn from the facts they find.

The reasons for thisdeference are obvious so I will not state them. [8] The Supreme Court of Canada explained the differences between questions of law, questions of fact and questions of mixedfact and law in Canada (Director of Investigation & Research) v.

Southam Inc., (SCC), [1997] 1 S.C.R. 748: … Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actuallytook place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. (Southam, paragraph 35) [9] Earlier in these reasons, I stated the three grounds the Crown relies on in its appeal. In the “Memorandum of Fact, Law andArgument” that counsel for Mr.

Penton filed in this matter, counsel noted that the standard of review of the grounds the Crown relies onis, for grounds (1) and (2), “palpable and overriding error” and, for ground (3), “correctness”. I agree with counsel’s submission, as doesthe Crown, and I will apply those standards as I review these grounds. Causing a Disturbance Statute [10] Section 175(1)(a)(

i) of the Criminal Code reads: 175(1) Every one who (

a) not being in a dwelling-house, causes a disturbance in or near a public place, (

i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, … is guilty of an offence punishable on

summary conviction. (Underlining mine.) Case Law [11] R. v. Lohnes, (SCC), [1992] 1 S.C.R. 167 is the pivotal decision in Canadian jurisprudence on causing adisturbance. Donald Hector Lohnes was charged with causing a disturbance for shouting obscenities from the veranda of his housetowards his neighbour who lived across the street. In shouting obscenities, Mr. Lohnes was expressing his displeasure at his neighbour’spractice of collecting equipment on his property and running motors that emitted loud noises. [12] The trial judge found Mr. Lohnes caused a disturbance and convicted him. The

summary convictions appeal court dismissedMr. Lohnes’ appeal and the Nova Scotia Court of Appeal refused him leave to appeal from the dismissed appeal. Mr. Lohnes appealed tothe Supreme Court of Canada. The Supreme Court allowed the appeal and set aside his conviction.

[13] McLachlin, J. (as she then was) delivered the judgment for the court. She analyzed the offence of causing a disturbance fromthree perspectives: “…the authorities, the principles of statutory construction, and the underlying policy issues” (Lohnes, paragraph 10).From her analysis this is how McLachlin, J. summarized the law that applies to causing a disturbance: 30. …[T]he disturbance contemplated by s. 175(1)(

a) is something more than mere emotional upset. There must be an externallymanifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by thepublic. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as tothe conduct of a person or persons under s. 175(2).

The disturbance may consist of the impugned act itself, as in the case of a fightinterfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearingproduce a scuffle. As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place mayconsist in something as small as being distracted from one's work. But it must be present and it must be externally manifested.

Inaccordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particularcircumstances of time and place. (Lohnes, paragraph 30) [14] Let me summarize the principles that are relevant to this case, from what the learned justice stated: • To be a disturbance, there must be something more than mere emotional upset, so that the act interferes with the ordinary orcustomary use of the premises by the public; • The interference with the use of premises may be as small as distraction from work, but it must be present as an externallymanifested disturbance of the peace; • The act that causes the disturbance may be the disturbance itself or the act may cause a disturbance secondarily; and • The disturbance must have been reasonably foreseeable in the context in which it happens.

Attempt to Cause a Disturbance Statute [15] Section 24(1) of the Criminal Code defines “attempt” this way: 24(1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intentionis guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. Case Law [16] In Henderson v. R., (SCC), [1948] S.C.R. 226, Kerwin, J. adopted this definition of “attempt” from Sir JamesStephen in “Digest of Criminal Law”: “An attempt to commit a crime is

an act done with intent to commit that crime, and forming part ofa series of acts, which would constitute its actual commission if it were not interrupted” (Henderson, paragraph 14). [17] In R. v. Ancio, [1984] 2 S.C.R. 225, McIntyre, J. said this about attempting to commit a crime: It is clear…that in common law and under the criminal law of Canada criminal attempt is itself an offence separate and distinct from thecrime alleged to be attempted.

As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence inquestion, and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation.Of the two elements the more significant is the mens rea. (Ancio, paragraph 30) [18] He added this further observation, stressing again the importance of the mental element to the attempted offence: … Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without theperformance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in theintent. (Ancio, paragraph 31) [19] In Causing a Disturbance, The Criminal Law Quarterly, 20 Crim.

L.Q. (1977-78) at 68, David Price discussed the mentalelement of the crime of attempting to cause a disturbance; of which he said: It may be that the court has been less vigorous in seeking the appropriate intent for an attempt [to cause a disturbance] in order to find anavenue that will avoid what appears to be the overly rigorous requirements for the offence itself.

It would be more constructive simply tofind the offence complete where one of the specified acts is done with the intent to disturb others or in circumstances where it may beinferred that the accused knew the act was likely to disturb. [20] From the preceding discussion of attempt to commit an offence, I find that the Crown must prove the following, when it alleges

that an accused attempted to cause a disturbance: 1) That he did some act (as in this case, shouting and swearing) to interfere with the ordinary or customary use of premises by the public; 2) That the act was more than mere preparation to cause this interference; 3) That he intended to do the act that might cause that interference, even though the act may not have had that effect; and 4) That he could reasonably have foreseen that a disturbance might result from his actions. [ 21 ] This is the law I will apply to the issues I stated earlier in these reasons.

I turn now to consider those issues, starting with the background to them. Analysis Background [ 22 ] Heather Gillis has worked as a reporter for NTV News since December 2011. She describes herself as a “video journalist”. She says her employer assigns her to gather news, “[p]retty much everywhere” (Transcript, page 31, line 1) and report on it. In 2017, aside from her general duties, Ms. Gillis also covered St. John’s City Council. Ms. Gillis works alone.

She described a typical interview setup this way: “…I shoot my own video, I record the audio with it as well, and I edit and write everything” (Transcript, page 32, lines 8-9). Elsewhere, she stated her setup somewhat more cryptically, as “I put the camera by (sic) the tripod, I shoot, and ask questions” (Transcript, page 32, line 11). [ 23 ] On April 24, 2017, at 1:30 pm, Ms. Gillis was interviewing then St. John’s City Councillor Danny Breen. Mr. Breen is now the Mayor of St. John’s. The St. John’s waste management facility at Robin Hood Bay was of interest to Ms. Gillis and she wanted to speak to Mr.

Breen about ongoing complaints from people who lived nearby about odours emanating from it. [ 24 ] When she testified at trial, she described how she set up for the interview: A. Okay, so on that day [April 24, 2017], I called Danny Breen and set up an interview, and we met outside the Robin Hood Bay waste management facility at 1:30 pm. I pulled the vehicle up onto the grass. There’s an exit ramp from East White Hills Road that goes into the waste management facility. I pulled over and put the truck upon the side so that other traffic could go around.

So, I set up my tripod near the front of my vehicle, and I wanted to get the words Robin Hood Bay waste – Robin Hood Bay waste management facility behind the shot of Councillor, at the time, Breen, because we were… (Transcript, page 32, lines 17-22 & page 33, lines 1-4) [ 25 ] Ms. Gillis said the interview lasted anywhere from 3 to 5 minutes. In her words, “[i]t was fairly quick” (Transcript, page 33, line 12). She described what happened next: A. I had reached around, and I had literally just stopped the recording, and I was still talking to Mr. Breen.

I think I was just summing up the contents of the interview, asking him, making sure that I got it right, and that I had the gist of everything, and then a truck drove by, it came from behind me and into the waste management facility, and someone yelled at me. (Transcript, page 34, lines 14-19) [ 26 ] As it happened, the waste management facility was closed to the public that day. Mr. Breen suggested to Ms. Gillis that the truck would soon reappear and if she waited for it, she might get information that would help her identify the person who shouted at her. Ms. Gillis took Mr.

Breen’s suggestion and remained on site. When the vehicle came back shortly, as expected, she recorded its licence plate number and passed it along to the police when she complained to them about the incident; but not before publishing the plate number and details of the incident widely on social media. [ 27 ] The person who yelled at Ms. Gillis was Justin Penton, the driver of the truck. According to Ms. Gillis, Mr. Penton shouted these words: “Fuck her in the pussy”. When Cst. Joe Smyth of the Royal Newfoundland Constabulary interviewed Mr. Penton about Ms. Gillis’ complaint, Mr.

Penton admitted he shouted at Ms. Gillis, but he said he uttered these words, “Fuck her right in the pussy”; and not quite as Ms. Gillis remembered his utterance. [ 28 ] Cst. Smyth described himself as a “social media officer” and explained what he meant: A. It’s in essence, monitoring the RNC social media accounts and engaging with members of the public when the situation calls for it. (Transcript, page 2, lines 6-8)

[ 29 ] He also explained how he found out that Ms. Gillis was offended by what Mr. Penton shouted at her: A. On that particular evening or afternoon [April 24, 2017], I was monitoring the RNC Twitter account, and we were receiving a number of notifications in relation to a post made by an NTV reporter that had suggested some derogatory comments made towards her, and other members of the public had been mentioning or tagging the RNC account, suggesting some action be taken. I was able to review the initial post by the NTV reporter, which (sic) was Ms.

Heather Gillis, and I had commented on behalf of the RNC account, suggesting that she does contact the RNC and that we would indeed investigate her complaint. (Transcript, page 2, lines 13-22) [ 30 ] Ms. Gillis filed a formal complaint with the RNC; her complaint triggered an investigation; and the RNC assigned the investigation to Cst. Smyth. Eventually, the police located Mr. Penton through the licence plate number that Ms. Gillis obtained from his truck. Mr. Penton acknowledged in a cautioned statement he gave to Cst. Smyth on April 24, 2017 that he shouted at Ms. Gillis. As I noted earlier, Mr.

Penton told the police officer he shouted “FHRITP” at Ms. Gillis, which differs slightly from what she remembered. Mr. Penton confirmed that the waste management facility was closed so he “…left the area and I didn’t think anything else about it until you guys showed up” (Mr. Penton’s cautioned statement, dated April 24, 2017, Exhibit JS#2). [ 31 ] In this exchange at trial with Crown counsel, Ms. Gillis stated the impact Mr. Penton’s utterance had on her: Q. Okay. And again, I mean, it may seem obvious, but why did you decide to engage in a police complaint? A.

Because this is not the first time this has happened to me; this is not the first time that it had happened to my colleagues from all different media stations, so I had enough, and I finally wanted to do something instead of complaining privately. Q. Okay. So, I guess, personally, how did this make you feel? A. Not very good. I’m, let’s say, for lack of a better word, a lone wolf. I’m a female video journalist, and I go places by myself all the time. I don’t have a crew. It made me feel humiliated and embarrassed and disgusting in front of Danny Breen, who is now the mayor of St.

John’s, and the words that are used to describe women, and they’re telling someone, you know, about women’s body parts without consent, yeah, it’s kind of disgusting to me. And I’m tired of it, and it’s embarrassing. (Transcript, page 38, lines 5-19) [ 32 ] Otherwise, Ms. Gillis made this observation about how Mr. Penton’s utterance affected her work: Q. So what effect did the utterance have on the conversation you and Mr. Breen were having? A. It derailed the conversation.

We started talking about what had just been yelled at us instead of the task at hand. (Transcript, page 39, lines 13-16) [ 33 ] In this further exchange at trial with Crown counsel, Mr. Breen shared Ms. Gillis’ abhorrence of Mr. Penton’s conduct and also noted how it affected their interview: Q. Now, can you – I don’t know if you could elaborate on how, you know, you were there, you heard the words shouted at Ms. Gillis yourself or in – just in general. What are your thoughts in regards to what was said, and you know, how do you feel about that? A. Well, you know, I mean, obviously, it was embarrassing to Ms.

Gillis. It was equally as uncomfortable for me. The – it’s not the first time I’ve been interviewed when this has happened, and it leads – for the person being interviewed, or for me in particular, to be uncomfortable with it, because, you know, you’re being interviewed in a professional situation by a person that’s doing their job, and you know, younger person than me, and obviously, for the reporter. Q. Do do you recall – so the interview – you said the interview, you thought the interview was just ended. Were you and Ms. Gillis still engaged in conversation at that point? A.

Yeah, we were still – we were definitely still across from each other in the setup that we would have had for the interview. (Transcript, page 26, lines 17-22 & page 27, lines 1-11) [ 34 ] The trial judge acquitted Mr. Penton because he was not satisfied beyond a reasonable doubt that Mr. Penton caused a disturbance by shouting at Ms. Gillis. He explained his decision in paragraph 10 of his written reasons:

[10] The overriding evidence in this case is that the effect of these vulgar and insensitive comments by Mr. Penton towards this female reporter were that they caused her, as she testified herself, to be “humiliated, embarrassed and disgusted”. Mr. Breen also testified that the remarks caused him to be uncomfortable as in his view Ms. Gillis was embarrassed about the situation. However, beyond that, there was no externally manifested disturbance, as there was no interference with the ordinary and customary use of the premises at the time and place in question. While it is acknowledged that Ms.

Gillis stated that in essence because of her humiliation, embarrassment and disgust at this vulgar comment the follow up conversation with Mr. Breen was derailed, that, in my view, does not fall within the narrow parameters of the

section as annunciated (sic) by the Supreme Court of Canada. This was but a momentary interruption of the conversation, which was followed by waiting for the truck to exit the landfill entrance in order to obtain the licence number of the vehicle. Something more than emotional upset and a momentary interruption in a conversation is needed to constitute the criminal offence of causing a disturbance in a public place. And that more is not present in this case. [ 35 ] This is the background to this appeal. I turn now to discuss the issues that the Crown’s appeal raises.

Discussion The Extent of the Alleged Disturbance [ 36 ] The trial judge acquitted Mr. Penton because the Crown failed to prove that he had caused “[s]omething more than emotional upset [to Ms. Gillis] and a momentary interruption in a conversation [that she was having with Mr. Breen]”. This was clearly as much as the trial judge found on the evidence before him and I may not interfere with his finding unless I find that he committed palpable and overriding error in reaching that conclusion. In R. v.

M.L . , 2019 NLCA 33 , Goodridge, J. described “palpable and overriding error” as “an error that is plainly identifiable and affected the result” ( M.L ., paragraph 17 ). [ 37 ] I cannot find that the trial judge erred either to that extent, or at all, in his finding about the impact of Mr. Penton’s utterance on Ms. Gillis or on the work she was doing at the time. Let me explain. [ 38 ] I quoted extensively from the transcript of the trial earlier in these reasons, focusing on the two main Crown witnesses, Ms. Gillis and Mr. Breen. The trial judge made these findings of fact based on their testimony: • Mr.

Penton shouted swear words at Ms. Gillis; • Mr. Penton shouted the swear words at Ms. Gillis in a public place; • Mr. Penton’s swear words were vulgar and insensitive; • Mr. Penton’s swear words caused Ms. Gillis to be “humiliated, embarrassed and disgusted”; • Mr. Penton’s swear words caused Mr. Breen to feel uncomfortable because Ms. Gillis was clearly embarrassed by them; • Mr. Penton’s swear words “derailed” the follow-up conversation between Ms. Gillis and Mr. Breen, more precisely quantified as a “momentary interruption” of the conversation; • Mr.

Penton’s swear words did not cause an externally manifested disturbance; and • Mr. Penton’s swear words did not interfere with Ms. Gillis’, Mr. Breen’s or the public’s use of the premises at the time and place when and where he shouted them at Ms. Gillis. [ 39 ] Each of these findings is fully supported by the evidence. I note, for example, Ms. Gillis’ description of her reaction to the words which I quoted earlier in these reasons: Q. Okay. So, I guess, personally, how did this make you feel? A. Not very good. I’m, let’s say, for lack of a better word, a lone wolf.

I’m a female video journalist, and I go places by myself all the time. I don’t have a crew. It made me feel humiliated and embarrassed and disgusting in front of Danny Breen, who is now the mayor of St. John’s, and the words that are used to describe women, and they’re telling someone, you know, about women’s body parts

without consent, yeah, it’s kind of disgusting to me. And I’m tired of it, and it’s embarrassing. (Underlining mine) [ 40 ] As to the impact on her conversation with Mr. Breen, Ms. Gillis said, “[i]t derailed the conversation. We started talking about what had just been yelled at us instead of the task at hand”. But Ms. Gillis did not go beyond that. She did not say, for example, that she had to redo her interview with Mr. Breen or that it upset her so much that she was unable to disassemble her kit and leave the area without assistance. Nor did she say that she was distracted so much by Mr.

Penton’s utterance that it ruined her interview with Mr. Breen. [ 41 ] I do not want to diminish the seriousness of Mr. Penton’s behaviour in any way by these comments. His actions were vile and loathsome, and they should be severely denounced. But they did not cause more than a transitory interference with the work Ms. Gillis was doing with Mr. Breen and they did not affect Ms. Gillis or Mr. Breen beyond the emotional upset and hurt that each expressed. Mr.

Penton did not cause a significant interference for either of the persons to whom he directed his utterance or for any other member of the public in the place where he shouted them. [ 42 ] I am reminded about the distinction that McLachlin, J. made between the words “disturb” and “disturbance” in Lohnes when she explained how the principles of statutory construction influenced her thinking on the meaning of “disturbance” in section 175(1) (

a) of the Criminal Code : 21. First, the noun "disturbance" may have a different connotation than the verb "to disturb". Not everything that disturbs people results in a disturbance (e.g., smoking). A definition which posits identity between "disturb" and "disturbance" is contrary to ordinary usage, the most fundamental principle of statutory construction.

This is not to say that one cannot speak of a purely emotional disturbance, but rather that "disturbance" has a secondary meaning which "disturb" does not possess; a meaning which suggests interference with an ordinary and customary conduct or use. ( Lohnes , paragraph 21 ) [ 43 ] In effect, the trial judge found that while Mr. Penton’s utterance “disturbed” both Ms. Gillis and Mr. Breen, the utterance did not “cause a disturbance”. He did not commit palpable or overriding error when he made those findings. There is no reason for me to interfere with them. Trial Judge’s Application of R. v.

Lohnes [ 44 ] The trial judge quoted extensively from McLachlin, J.’s judgment in Lohnes . He found that, while Mr. Penton’s utterance “derailed” her follow-up conversation with Mr. Breen, it “…does not fall within the narrow parameters of the

section as annunciated (sic) by the Supreme Court of Canada”. Within that context the trial judge then found that “[s]omething more than emotional upset and a momentary interruption in a conversation is needed to constitute the criminal offence of causing a disturbance in a public place. And that more is not present in this case”: (Trial Judge’s decision, paragraph 10). [ 45 ] The trial judge’s finding is consistent with McLachlin, J’s. statements in Lohnes : …[T]he disturbance contemplated by s. 175(1)(

a) is something more than mere emotional upset. … As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present, and it must be externally manifested…. ( Lohnes , paragraph 30 ) [ 46 ] In this case, neither Ms. Gillis nor Mr.

Breen spoke of any impact beyond emotional upset and neither, in particular, gave any indication of an “externally manifested” interference with the use of the public place in which they were situate. [ 47 ] It is important to note as well, that the trial judge did not rule out the possibility of finding that similar utterances might attract criminal liability, depending on the “facts of the case”.

This is the second of two “closing…points” the trial judge made in the penultimate paragraph of his written reasons: …[M]y decision on the fact of this case does not mean that these noted words can be said to persons, in particular, female reporters out doing their jobs, with impunity. It very much depends on the circumstances and context of the case whether such words will attract criminal liability. On the facts of this case, they do not.

In another context they might indeed violate section 175 (1) of the Criminal Code . (Trial Judge’s decision, paragraph 12) [ 48 ] I find that the trial judge did not commit palpable or overriding error in applying Lohnes to the facts of this case. Attempt to Cause a Disturbance [ 49 ] Earlier in these reasons I set out what the Crown had to prove beyond a reasonable doubt to find Mr. Penton guilty of attempting to cause a disturbance: 1. That he did some act (as in this case, shouting and swearing) to interfere with the ordinary or customary use of premises by the public;

2. That the act was more than mere preparation to cause this interference; 3. That he intended to do the act that might cause that interference, even though the act may not have had that effect; and 4. That he could reasonably have foreseen that a disturbance might result from his actions. [ 50 ] There is ample evidence to support the first, second and third points. The fourth point is more problematic.

Let me explain. [ 51 ] The mens rea for the offence of causing a disturbance in a public place is the intention to do the act that might cause interference with the ordinary or customary use of premises by the public. The Crown does not have to prove that the accused actually intended to cause that interference. But as McLachlin, J. said in Lohnes , if a disturbance occurs, it “…must be one which may reasonably have been foreseen in the particular circumstances of time and place”.

It follows that if no disturbance results, to be guilty of an attempt to cause a disturbance the Crown must prove both that an accused intended to do the act complained of (shouting “FHRITP”, in this case) and that he could reasonably have foreseen that a disturbance might result from his actions. [ 52 ] The trial judge offered this reason for rejecting the Crown’s claim that Mr. Penton should be convicted of attempting to cause a disturbance: “The vulgar comment was not an attempt to interfere with the public peace” (Trial Judge’s decision, paragraph 11). His explanation invites several possible inferences: Mr.

Penton simply intended to utter the words at Ms. Gillis and Mr. Breen and did not intend to cause a disturbance; the words that Mr. Penton uttered could not possibly have caused a disturbance; or, Mr. Penton could not reasonably have foreseen that the words he uttered might cause a disturbance? [ 53 ] The trial judge prefaced his rejection of the Crown’s submission that Mr.

Penton should be found guilty of an attempt to cause a disturbance with these comments: “I am of the view that this argument fails for the same reason as the principal argument with respect to the offence” (Trial Judge’s decision, paragraph 11). I have already explored the trial judge’s “reason…[why] the principal argument… [failed]”: Mr. Penton’s utterance caused “emotional upset” to Ms. Gillis and Mr. Breen and a “momentary interruption” of their conversation; but one or both effects do not constitute a “disturbance” as contemplated in section 175 (1) (

a) of the Criminal Code . [ 54 ] It seems reasonable to conclude then that the trial judge rejected the claim that Mr. Penton’s utterance was an attempt to cause a disturbance because the words Mr. Penton spoke in that time and place could not possibly have caused a disturbance, the second of the two inferences I posited two paragraphs back: the words that Mr.

Penton uttered could not possibly have caused a disturbance. [ 55 ] That inference is also supported by a comment that I set out above from the penultimate paragraph of the trial judge’s decision: “…[M]y decision on the facts of this case does not mean that these noted words can be said to persons , in particular female reporters out doing their jobs with impunity. It very much depends on the circumstances and context of the case whether such words would attract criminal liability” (Trial Judge’s decision, paragraph 12). [ 56 ] The inference is also marginally supported by two comments Mr.

Penton made in the cautioned statement he gave to Cst. Smyth: “When we arrived, I saw a news crew setting up at the entrance [to Robin Hood Bay]. I didn’t think they were recording or broadcasting”; and, “I didn’t think I yelled it. I guess they heard me and took offence to it”. (Mr. Penton’s cautioned statement, dated April 24, 2017, Exhibit JS#2) [ 57 ] The first comment suggests that Mr. Penton thought that Ms. Gillis and Mr. Breen were just setting up for the interview, and not into it, so that he would not be interfering with them if he shouted at them.

The second comment was his answer to a question from Cst. Smyth at the end of his statement: “Why did you yell this?” His answer implies that he did not think he uttered the words loud enough for them to hear him in any event. Both comments support the trial judge’s finding that “[t]he vulgar comment was not an attempt to interfere with the public peace”. [ 58 ] The trial judge’s decision to reject the Crown’s submission that Mr. Penton should be found guilty of an attempt to cause a disturbance is reviewable on the standard of correctness.

Admittedly, this is a lower threshold of review than the standard of palpable or overriding error that applies to findings of fact or of mixed fact and law. It also allows me to substitute my own findings for those of trial judge, if I find that he misconstrued the law. I will not do that. [ 59 ] While the trial judge found that Mr. Penton intended to and did shout the loathsome words at Ms. Gillis and Mr. Breen, he did not find that Mr. Penton’s utterance could possibly have resulted in an interference with the ordinary or customary use by the public of the place where Ms. Gillis and Mr.

Breen were situate, including the use that they were making of it at the time. Nor, by inference, did the trial judge accept that Mr. Penton could have reasonably foreseen that his words would have had that effect. The trial judge did not exclude the possibility that the words might have that effect in a different context, but not in this case. In doing so, the trial judge properly interpreted and applied the law on attempt to cause a disturbance to the facts of this case. I reject, as did the trial judge, that Mr. Penton should be found guilty of attempting to cause a disturbance.

Summary and Disposition [ 60 ] Justin Penton shouted the words represented by the acronym “FHRITP” at Heather Gillis, a photojournalist with NTV News as she was interviewing Danny Breen, a St. John’s City Councillor. The police charged Mr. Penton with causing a disturbance and a Provincial Court judge dismissed the charge. The trial judge found the words that Mr. Penton uttered caused emotional upset to both Ms. Gillis and Mr. Breen. He also found that the shouting interrupted momentarily a follow-up conversation the parties were having about the interview, which had just ended. But the trial judge was not satisfied that the words caused a disturbance within the meaning of section 175 (1) (

a) of the Criminal Code . The Crown appealed. [ 61 ] The Court dismissed the appeal. It found that the trial judge did not err in his findings of fact or law. The Court accepted the trial judge’s conclusion that Mr. Penton’s utterance caused only a transitory interference with the work Ms. Gillis was doing with Mr. Breen. It also accepted the trial judge’s finding that Mr. Penton’s shouting did not affect Ms. Gillis and Mr. Breen, beyond the emotional upset and embarrassment that both said they felt. In effect, Mr. Penton’s words did not cause a significant interference with either Ms. Gillis or Mr.

Breen or any other member of the public, at the time when and in the place where Mr. Penton shouted them. _____________________________ Garrett A. Handrigan Justice