Judge rules ‘vulgar’ slur against reporter was not a public disturbance

ST. JOHN’S, N.L. — A notorious sexist slur aimed at a reporter in St. John’s, N.L., was vulgar and offensive but not a crime under the circumstances, a judge ruled Tuesday.

Provincial court Judge Colin Flynn dismissed the single charge against Justin Penton, 28, of causing a public disturbance.

Penton acknowledged he yelled a phrase commonly abbreviated to FHITP at NTV reporter Heather Gillis last April as she taped an interview outside the St. John’s dump.

But Flynn ruled the incident — part of a crass phenomenon that has plagued journalists in the United States and Canada since it started as an online prank in 2014 — did not meet legal precedents for interfering with the public peace.

“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,” Flynn wrote.

“It was a vulgar and offensive comment which was offensive to all right thinking people, but is not caught by the criminal law as presently enacted.”

Flynn noted it’s open to Parliament to broaden the law as was done in England where statutes protect against intentional harassment but also ”alarm or distress.”

The judge also said his ruling on the specific facts “does not mean that these noted words can be said to persons, in particular female reporters out doing their jobs, with impunity.”

Flynn said it depends on context and circumstances.

Gillis said in an emailed statement she understands the judge has to work within the law but is disappointed in the ruling.

Calgary police charged a man in 2015 after a female journalist covering bad hockey fan behaviour had the phrase hurled at her from a truck. She got the licence plate.

The man, who was not named, was charged with stunting under the Traffic Safety Act — a non-criminal offence defined as distracting, startling or interfering with other users of a roadway. It now carries a $543 fine.

Mark Dwyer, NTV news director, said the process wasn’t easy for Gillis.

“She’s a very proud journalist and we just admire that she stood up for herself and brought it forward,” he said in an interview.

“Another reporter who is in our newsroom just last night had that same obscenity yelled at them during a live hit at city hall. It continues, unfortunately. In our newsroom, almost every female reporter has been subjected to it.”

Gillis testified she was “humiliated, embarrassed and disgusted” with the remark, particularly because it happened as she was interviewing then city councillor Danny Breen, now the mayor of St. John’s. She posted a widely shared photo of the truck to Twitter, saying she was “publicly shaming” the heckler.

Gillis then received a message from the Royal Newfoundland Constabulary saying they’d follow up if she wished to make a complaint about what police said could be crime. She did.

Breen testified it wasn’t the first time he’d been in the middle of an interview with a reporter interrupted by the same slur.

Penton’s lawyer Ellen O’Gorman said the case goes to the heart of criminal law.

“The purpose of criminal law is not to police politeness or protect us from hurt feelings,” she said in an emailed statement. “It’s not illegal in our country to shout or swear or make vulgar, insensitive comments to another person. But, if your shouting and swearing causes a disturbance, you could be charged under the same section of the Criminal Code.”

Criminal charges are a blunt tool where a “nuanced conversation” about changing attitudes and behaviours is needed, O’Gorman said.

“I can tell you that Mr. Penton would not recommend that anyone repeat his conduct,” she said, adding he feels remorse and embarrassment for what he said and how it affected Gillis.

“It was an action that was thoughtless in the moment but ended up giving him a great many sleepless nights.”

St. John’s lawyer Melissa Royle, who was not involved in the case, said it speaks to a lag in the law.

“I was disheartened but not really surprised,” she said in an interview. “The judge can only apply the law as it currently stands.”

“I think it’s really important that this conversation is happening — whether it’s Parliament, whether it’s judge-made law, that something happens to say this behaviour is not okay.”

Co-workers showed their support for Gillis on social media.

“She was steadfast in her effort to show that ignorance, misogyny and degrading slurs hurled at (often) female reporters will not be tolerated,” NTV reporter Jodi Cooke said on Twitter. ”It’s offensive. It’s wrong. Heather demanded accountability. We all have to.”

Follow @suebailey on Twitter.

Sue Bailey, The Canadian Press

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