Middle finger salute relays information

Man accused of breaching no-contact order

The Canadian jurisprudence on what many judges have euphemistically called the “middle finger salute” just goes on and on.

Flipping the bird has come up as evidence in dozens of cases of road rage or mischief, for example, but it is most controversial in cases of protection orders, when someone is prohibited from communicating with someone else.

A Nova Scotia judge, for example, once ruled that people under these orders “can’t go around giving the finger to the individuals that they’re not supposed to be contacting. That’s a form of communication. It’s not positive.”

Similarly, an Ontario Labour arbitrator has observed: “In western culture and society the raising of the middle finger or ‘ giving the finger’ is a well known obscene hand gesture intended to mean “f--- you” or “f--- off” to another person.”

The gist of these judicial decisions is that the middle finger is special among fingers, and not just because it is the longest. Raised alone, in someone else’s direction, it conveys a meaning. It is a symbolic gesture. It is, in the eyes of the courts, a form of communication. This is not just a subjective judgment, as an Alberta judge once decided. “Even if intended as a casual nonchalant gesture,” he wrote, it is objectively “crude and provocative.”

So when Marcel Peter Marche answered charges of breaching his recognizance at the Provincial Court of Newfoundland and Labrador in Corner Brook, N. L., recently, he was up against a significant body of case law.

At issue was a tense encounter at a “sock hop” in a school gymnasium, and later outside on the street, between Marche and the estranged mother of his children, identified only as Ms. B, in which Marche was alleged to have stared her down and given her the finger from his car as he left. Normally, this would be a petty, non- criminal personal dispute. But Marche was under court order not to communicate with Ms. B. That is where it gets tricky.

The decision of provincial court Judge Wayne Gorman begins with the observation that giving someone “the finger” is well known as a form of “communication.” More precisely, it is an exchange of information between individuals “through a common system of symbols, signs or behaviour,” the judge decided, citing the authority of an American dictionary.

“Giving another person the finger involves an exchange of information,” he wrote.

Consequently, if Marche gave Ms. B the finger, he violated his recognizance, which required him to keep the peace and be of good behaviour, not have “any contact or communication whatsoever” with Ms. B, and not to “annoy, torment, harass or intimidate” Ms. B.

“But for the sock hop, this probably would not have occurred,” Gorman wrote in his judgment this week.

Both were there for their children, and Ms. B testified Marche was staring at her, what she described as “staring her down.” Now, as a side issue, staring can also be a form of communication, the judge decided, but in this case the evidence did not prove beyond a reasonable doubt that his looking at her rose to the level of “staring.”

“I understand that Ms. B may have felt nervous and anxious being in Mr. Marche’s presence, but the evidence does not establish that he was staring at her,” Gorman wrote.

The key issue is what happened after the sock hop, as Marche was driving away with his girlfriend. Roughly, Ms. B alleged he drove by her slowly with his arm out the driver’s side window, and flipped her the bird.

“If the Crown were able to prove that Mr. Marche intentionally gave Ms. B the finger, it would have proven that he breached the section 810 recognizance that he was bound by,” Gorman wrote. “It would have done so because it would have proven that he had communicated with Ms. B and thereby failed ‘ to keep the peace and be of good behaviour.’”

However, in the end the judge was faced with contradictory testimony. Marche denied giving Ms. B the finger, as she alleged, and with no other determinative evidence ( Marche’s girlfriend was not in a position to see), the Crown failed to prove that the middle finger was raised.

As a result, the charges failed, and Marche was acquitted.