A judge of the Court of Quebec affirms that Canadians have the inherent and fundamental right, guaranteed by the Charter, to present the middle finger to an inconvenient neighbour.
Judge Dennis Galiatsatos made the comments when he recently acquitted a West Island of Montreal man charged with criminal harassment and uttering threats.
The judge even finds the mere fact that this man was arrested and charged in this case appalling. “This injustice comes to an end today,” Judge Galiatsatos wrote in a decision handed down on February 24.
“To be very clear, it’s not a crime to give someone the middle finger. It is a fundamental right enshrined in the Charter, which belongs to all Canadians.
“It may not be civil, it may not be polite, it may not be courteous. But it does not engage criminal liability. Offending someone is not a crime. This is an integral part of freedom of expression, ”continues the judge.
Neall Epstein, a 45-year-old teacher, was arrested by police in May 2021 as he returned home to Beaconsfield after a walk. Earlier that day, he had met one of his neighbors, Michael Naccache, who lived on the same street and with whom he had had previous conflicts.
Mr. Naccache, aged 34, hurled insults at his neighbor while he was holding a power tool “in a threatening manner”, concluded the judge. Mr. Epstein responded by presenting his two well-behaved middle fingers and he continued on his way.
Who is threatening who?
Mr Naccache alleged at trial that Mr Epstein made the gesture of slitting his throat and he maintained that he feared the defendant would return and try to kill him – claims the judge did not believe.
“On what basis did he fear that Mr. Epstein was a potential murderer? The fact that he walked quietly with his children? The fact that he socialized with the other young parents on the street? If this is the norm, we should all fear that our neighbors are would-be killers,” Judge Galiatsatos wrote.
This incident was in fact the culmination of a series of interactions between the two men and members of their families. Mr. Naccache claimed the interactions amounted to months of harassment, but the judge ruled it was harmless behavior.
“For the plaintiffs, the presence of young families outside is a source of contempt and strong resentment, which eventually turned into a criminal complaint against their neighbor,” writes the judge, describing Mr. Epstein as “ the caring father of two young girls, who has committed no crime whatsoever”.
He considers “deplorable” the fact that the plaintiffs “used the judicial system as a weapon in order to take revenge on an innocent man”.
Mr. Naccache maintained that he believed that Mr. Epstein regularly and unknowingly filmed him and his family. In reality, concluded the judge, it was Mr. Naccache who had filmed his neighbor, and others, thanks to cameras installed outside the house in which he lived with his parents and his brother. There were also cameras on his motorcycle and in his parents’ vehicles.
Dangerous driving
In a video submitted into evidence, the court saw Mr. Naccache’s mother, Martine Naccache, driving dangerously near neighborhood children, the judge wrote. About an hour later, Mr. Naccache’s father, Frank Naccache, “deliberately and cruelly” did the same, according to the judge’s ruling, which resulted in a confrontation with several dads in the neighborhood, including Mr. Epstein.
The defendant said that during this episode, Frank Naccache threatened to intentionally hit the children with his car. Michael Naccache claimed in court that Mr Epstein assaulted his parents during that confrontation, but video evidence instead showed that Mr Naccache’s brother Ari pushed Mr Epstein, who then walked away in that which the judge called a “remarkable exercise of restraint”.
Judge Galiatsatos writes that Martine and Frank Naccache should consider themselves lucky not to have been charged with dangerous driving. As for the two Naccache brothers, they had been lucky not to have been accused of assault or threats, wrote the judge.
In his decision, written in English, Judge Galiatsatos writes that he wished he could literally, and not just figuratively, dismiss the complaint — “ throw the case out as the jurists say in English.
“In the specific circumstances of this case, the Court is inclined to take the record and throw it out the window, which is the only way to adequately express my bewilderment that Mr. Epstein has been subjected to arrest and full prosecution,” the judge wrote.
“Alas, the courtrooms of the Montreal courthouse have no windows. A simple verdict of acquittal should suffice. »
A spokeswoman for the Director of Criminal and Penal Prosecutions (DPCP) said prosecutors must remain confident throughout the legal process that there is a reasonable prospect of conviction.
In this case, Me Audrey Roy-Cloutier wrote in an email on Wednesday, the prosecutor concluded that the evidence did not meet the threshold of a conviction while Mr. Epstein was testifying. She declined to cross-examine Mr. Epstein and instead asked the judge to acquit him.
Although the DPCP does not agree with some of the statements made by the judge in his decision, it will not be appealed, indicated Mr. Roy-Cloutier.
The Montreal Police Department said Wednesday it was studying the judgment and would not comment. It was not possible to speak to Mr. Epstein or the Naccaches.