Giving middle finger a Charter-protected right, finds Quebec judge

Dispute between neighbours came down to a question of credibility, says lawyer

Giving middle finger a Charter-protected right, finds Quebec judge

Giving a person the middle finger is a Charter-protected right, guaranteed by the freedom of expression, found a Court of Quebec judge while acquitting a man on charges of harassment and uttering death threats.

“To be abundantly clear, it is not a crime to give someone the finger,” wrote Justice Dennis Galiatsatos. “Flipping the proverbial bird is a God-given, Charter-enshrined right that belongs to every red-blooded Canadian. It may not be civil, it may not be polite, it may not be gentlemanly. Nevertheless, it does not trigger criminal liability.”

The case, R. c. Epstein, 2023 QCCQ 630, dealt with several incidents between neighbours in suburban Montreal in the spring of 2021.

The dispute between Neall Epstein and the Naccache family originated with a five-year-old’s birthday party on March 25, 2021. Nine children, aged two to eight, were gathered along with Epstein and other parents from the neighbourhood.

The party happened in front of Martine and Frank Naccaches’ house. The complainant, their son Michael Naccache, characterized the scene as “blocking the street while drinking at the height of the pandemic” with “toys left in the middle of the road.” He said it was an unsafe location for a gathering because it was “right at the end of a blind curve.”

But Michael, who lives nearby with his brother, Ari, had installed four closed-circuit cameras on his parents’ vehicles and his motorcycle helmet, which put the front of his parents’ house under surveillance, whenever the cars were parked in the driveway. Galiatsatos said the video evidence painted a “starkly different picture” than Michael’s version.

First, Martine arrived home in her car, and the parents cleared the kids off the street to make way. Around an hour later, Frank approached his house. The party had thinned, but four kids and three fathers were still around. The kids moved out of the way to let Frank into his driveway, and Frank did not slow down while he zoomed passed them. Both outraged, Epstein and another father made gestures indicating that he was driving too quickly and close. The rear-facing camera on Frank’s car confirmed that he did not decelerate. The brake light only flashed for a fraction of a second.

Another piece of video evidence confirmed Epstein’s testimony that the Naccaches are “reckless on the road” and “drive with disregard for the welfare of the neighbourhood’s children.”

On her way home that day, Martine had made a similarly reckless manoeuvre. Her camera captured a young girl on a different street, not part of the birthday party, who looked approximately four years old. She was crossing the street on her scooter as Martine approached. “Frazzled,” the girl stumbled out of the way of the car, pushing her scooter and “narrowly avoiding being hit,” said Galiatsatos. Martine did not slow down the car, just like her husband did an hour later.

After Frank blew passed the birthday party and exited his vehicle, the fathers on the scene confronted him. Both parties yelled at each other, and Epstein recorded the argument on his cell phone. Michael was at the side of the house calling the police, but Ari joined the fray and pushed Epstein. After the police showed up and arrested no one, Michael followed up the next day by phone, pressing the officer about charging Epstein with harassment. Unsuccessful, he called the police again the next day. The only response he got was that his brother could have been arrested for pushing Epstein, and his father, ticketed for driving dangerously.

The argument during the birthday party led to, what Michael described, as several episodes of criminal harassment. He alleged that on two occasions, Epstein walked past the Naccaches’ house, filming it from the sidewalk. But the video evidence showed that Epstein merely walked by the house holding his phone and did not appear to be filming anything, said Galiatsatos.

The alleged harassment continued in April when a 10-year-old boy, whom Michael suspected had attended the birthday party, pointed a hockey stick toward the Naccaches’ house, holding it like a rifle. Michael added that a litter later on, Epstein and his wife walked by and stared at the Naccache home while Mr. Epstein “was pretending to be on his phone.”

Michael was also “afraid and confused” following another incident when he returned home on his motorcycle and found himself behind Epstein’s car. Michael followed him for several blocks until they reached Epstein’s house, and instead of turning into his driveway on the right, Epstein turned to the left and stopped, forcing Michael to pass him. As Michael proceeded to his driveway, a few metres away, Epstein followed behind him and then kept driving. Michael worried that he would be run over.

In May, Michael documented another incident of Epstein alarmingly, looking in the direction of his parents’ house before the alleged uttering of death threats occurred on May 18.

Michael was renovating the front staircase of his house with a handheld jackhammer. He heard a faint sound through the earplugs he was wearing and turned around to see Epstein walking by, staring at him and giving him the middle finger with both hands. As he made his way past the house, Michael said Epstein made a throat-slashing gesture and then a punching motion.

In Epstein’s version, he walked by Michael’s house, and Michael called him a “crazy neighbour,” a “dipshit,” and said, “you’re fucking dead.” Epstein said he responded with his middle fingers before waving dismissively in Michael’s direction – not making a throat-slitting gesture.

When Epstein returned home from his walk, police officers were waiting for him and arrested him for uttering death threats.

“It was, essentially, a question of credibility,” says Walid Hijazi, a Montreal criminal defence lawyer who was not involved in the case.

“The Court has no difficulty believing the accused. I wholeheartedly accept his testimony as truthful,” said Galiatsatos. “His answers were spontaneous, unrehearsed, simple, consistent with the video evidence and inherently realistic. The sincerity in his voice was palpable.”

On the other hand, Michael’s testimony was “rehearsed, evasive, and untruthful on many levels,” he said.

“From early on in his account, long before his cross-examination even began, it became readily apparent that he had a penchant for exaggeration and misrepresentation. Some of his claims were inherently implausible. Others starkly contradicted the video evidence, which was odd, considering the fact that he was the one that provided said footage to the police.”

Michael’s “glaring exaggerations” are a mix of “unjustified hypersensitivity” and “malicious deceit,” said Galiatsatos.

Epstein admitted giving Michael the finger, and the video evidence confirmed it. However, Epstein was protected by s. 2 of the Charter, his freedom of thought, belief, and expression said the judge.

“Offending someone is not a crime,” he said. “It is an integral component of one’s freedom of expression. Citizens are to be thicker-skinned, especially when they behave in ways that are highly likely to trigger such profanity – like driving too fast on a street where innocent kids are playing. Being told to ‘fuck off’ should not prompt a call to 9-1-1.”

“So, it is an insult,” says Hijazi, “and it's maybe not a nice gesture in itself. But it's an act that is protected by freedom of speech, essentially. In itself, without anything else, it does not constitute a crime.”

After Epstein testified, the Crown decided that the evidence presented before the court could not prove his guilt beyond a reasonable doubt and asked the judge to acquit him, says Audrey Roy-Cloutier, spokesperson for the Director of Criminal and Penal Prosecutions

But Galiatsatos went on lament that the case was ever before the court in the first place.

“In the modern-day vernacular, people often refer to a criminal case ‘being thrown out.’ Obviously, this is little more than a figurative expression. Cases aren’t actually thrown out, in the literal or physical sense.”

“Nevertheless, in the specific circumstances of this case, the Court is inclined to actually take the file and throw it out the window, which is the only way to adequately express my bewilderment with the fact that Mr. Epstein was subjected to an arrest and a fulsome criminal prosecution. Alas, the courtrooms of the Montreal courthouse do not have windows.”


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