The reference I have seen is that Calgary police are encouraging reporters to contact them and report incidents of FHRITP, and that they have "a legal opinion" that the behaviour could fall under the scope of s. 175(1)(a) of the Criminal Code of Canada. Note: that's an opinion. Until an appellate court rules on this, setting a precedent that binds lower courts in its jurisdiction, it's just opinion. The police, and even Crown attorneys, don't get to define what behaviour is criminal in Canada. Frankly, I'd be shocked if the first person charged for this behaviour couldn't go all the way to the Supreme Court of Canada if they're properly funded and have good representation.
The actus reus of s. 175(1)(a) has two elements: (i) engaging in the enumerated behaviour; and (ii) causing a disturbance in or near a public place. R v Lohnes, [1992] 1 SCR 167, 10 CR (4th) 125, seems to be the controlling authority and states that the disturbance "is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public." I would suggest that is intended to be read as a fairly high threshold, and most of the reported cases seem to result in acquittals on the basis that the behaviour did not cause a disturbance.
That's not to say that people aren't convicted of s. 175(1)(a) offences. I can't know, but I'm sure many accused do plead guilty when there is incontrovertible evidence that their behaviour did cause "an externally manifested disturbance" such as a scuffle, fight, riot, or damage to someone else’s property. The legal opinion referenced by the Calgary police likely relies on Lohnes’ acknowledgement that “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.” It’s easy to see how FHRITP could be slotted into this characterization. On the other hand, a threshold as low as momentary distraction opens the potential scope of s. 175(1)(a) substantially and it’s important to note the qualifier “may” in the Court’s decision.
Secondly, there are without doubt Charter concerns that would arise in the sort of prosecution under s. 175(1)(a) that is apparently being contemplated by some Canadian police forces. To the best of what I can see, there is virtually no appellate court case law applying the Charter to prosecutions under s. 175(1)(a). A lower court, however, gave fairly broad protection to the accused in R v Stewart, [2000] WWR 395 (MBPC). There it was held that "abusive comments shouted at police (or anyone else) do not in themselves constitute the offence of cause disturbance" [sic]. The arrest of the accused, for engaging in enumerated behaviour the police believed to be a violation of s. 175(1)(a), was found to be unlawful because a reasonable person would not have believed it was creating a disturbance. The fact that this decision was not appealed suggests that the Crown, at least in Manitoba at that time, did not feel they had a strong enough argument to make it worth pursuing, or it was not in the public interest to do so.
For those who seem to misunderstand: freedom of expression is protected in Canada by s. 2(b ) of the Canadian Charter of Rights and Freedoms. Like most modern rights protecting documents, however, the Charter allows the government to justify infringements of the protected right if it can establish that the limit is reasonable, “prescribed by law”, and “can be demonstrably justified in a free and democratic society.” In Stewart, in the absence of an offence, even police instruction to stop singing an offensive song was found to be an unjustified interference with accused’s rights under s. 2(b ). That said, due to the pervasiveness of the FHRITP problem, I would hesitate to state that the limit on expression could not be justified by the Crown under s. 1 of the Charter if the Crown is successful in showing that it caused a disturbance. Until a case is litigated all the way to the Supreme Court, a process which would take years, we can’t really know.
There is a certain unfortunate irony to this state of the law. Were a reporter, or a bystander, to physically confront an individual after the reporter had been subjected to FHRITP, the reporter, or bystander, may be uttering a threat or committing an assault, but that would be a disturbance and likely open the person who engaged in the FHRITP to criminal prosecution under s. 175(1)(a). In a sense, FHRITP might only become criminal conduct once it actually creates the problem s. 175(1)(a) is designed to prevent.
Finally, to be clear, sexual harassment is not a crime in Canada unless the conduct falls under some other offence in the Code. Use of the phrase “sexual harassment” in a criminal context confuses potential legal remedies that are available through civil actions, or complaints to the relevant human rights or labour tribunal. Neither of these avenues results in a criminal prosecution, conviction, or record for the defendant. Criminal harassment is an offence in Canada, defined in s. 264 of the Code, but the behaviour it criminalizes is closer to what we would call “stalking” in ordinary speech. Further, the prohibited conduct criminalized in that section, specifically listed in subsection (2), is only criminal if it causes the complainant to reasonably fear for their safety or the safety of anyone known to them. It would be a reach to attempt to extend the ambit of that section to the FHRITP problem.
The broader question that needs to be asked is whether FHRITP is the sort of problem that is best addressed by the criminal law. Our society has slipped into a mode where very often our first response to antisocial behaviour is to think of ways we can criminalize it. As extra-legal mechanisms of social control such as family, church, or community have seemed to weaken there is a presumption that the only way to regulate behaviour is through the use of criminal law. Sometimes the result of this attitude is even flipped, by people trying to rationalize or defend antisocial behaviour, who suggest that if something isn’t a crime it’s improper for others to consider it wrongful.
But police investigation, criminal prosecution, and supervision by corrections are expensive and time-consuming processes that engage important legal rights designed to protect the accused from illegitimate abuses of state power. As broader swathes of behaviour become regulated by criminal law the system becomes overloaded and incentives increase to cut corners on those rights or draft and interpret laws in ways that make prosecution easier. The result is a situation where, due to the breadth of behaviour captured, massive portions of the population are committing “crimes” all the time, but selective prosecution is used to decide who is labelled criminal. Rather than legislatures and courts deciding who is sanctioned, we hand that power to police and prosecutors.
Consider the interpretation of s. 175(1)(a) that the Calgary policy are evidently proposing. If accepted, any person who (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, (ii) by being drunk, or (iii) by impeding or molesting other persons, causes momentary distraction to someone working in a public place, would now be committing a crime. Yell something that causes a window cleaner to turn his head, even if it’s not vulgar, and you’ve committed a crime. Sing a song that distracts a hot dog vendor and you’ve committed a crime. Block the path of a courier walking on the sidewalk while you conduct a television interview and you’ve committed a crime. Obviously not all of those examples would ever result in charges or prosecution. But ask yourself, who will be prosecuted? If all the behaviour meets the legal definition of the crime, why are some people excused? And should it be the police and prosecutors who get to make that decision? That is why appellate courts have been so careful to not allow an expansive definition of what constitutes a disturbance.
On the other hand, instead of being ineffective, compare the criminal approach with how fast extra-legal approaches to antisocial behaviour have been able to act. As the video went viral the perpetrator and the men interviewed were quickly publically shamed. Toronto FC announced that they would attempt to identify the individuals and that they would be banned from BMO Field. Allegedly, one of them has already been fired from his job. All of that without the involvement of the police, Crown attorneys, or the court system.
Now, any of those responses may result in different legal processes being engaged, such as civil defamation proceedings, a Charter challenge to MLSE’s right to ban someone, for otherwise legal expressive behaviour, from a municipally owned facility they operate, or a complaint to a labour tribunal, but in each case the onus is now on the individuals affected. They’ve already been sanctioned, and would have to use non-criminal legal processes if they feel they have a legitimate interest in seeking redress. And there’s no certainty that they’d be successful in any of those venues. Rather than not working, alternative methods of social control were faster, less expensive, and arguably more meaningful than a protracted criminal prosecution. A prosecution which would likely result in a fairly negligible punishment, if any, for a first summary offence conviction. Again, considering all of this, is FHRITP a problem best dealt with by the criminal law?
And TFC plays a game against the Impact tonight. After two straight losses, and a deflating home opener, I hope they win.