Harassment case sees appeal
Justin Penton was acquitted of yelling at TV news reporter; Crown says the judge made a mistake
A provincial court judge who acquitted a man of yelling a sexist slur at a female TV news reporter made a mistake by not taking one important fact into account, the Crown argued this week.
“She was working at the time. This was not just a casual conversation,” prosecutor Richard Deveau argued before Justice Garrett Handrigan of the Newfoundland and Labrador Supreme Court. “The error, from our perspective, is that the trial judge characterized it as just a conversation.”
The Crown, represented by Deveau, is appealing the acquittal of Justin Denis Penton, who was acquitted in February 2018 of causing a disturbance by yelling a slur at then-ntv News reporter Heather Gillis as she was on a field assignment the previous year.
Gillis had just finished interviewing then-st. John’s city councillor Danny Breen, who is now mayor, at the Robin Hood Bay landfill facility and was asking some offcamera follow-up questions when Penton drove by in his pickup. As he passed by, he yelled “F--k her in the p---y!” — a version of a slur first seen in a series of Youtube videos in 2014. Field reporters across the continent have been subjected to the phrase being yelled at them from passersby ever since. Many have been caught on camera. In some cases in Canada the person yelling the phrase has lost their job or been criminally charged as a result.
Gillis snapped a photo of Penton’s licence plate as he drove away and posted it on Twitter, where she was contacted by the RNC and told the incident might amount to a crime.
Penton acknowledged he had yelled the phrase at Gillis and apologized for it when he was visited by the police, but pleaded not guilty in court to a charge of disturbing the peace. He was found not guilty, with provincial court Judge Colin Flynn saying although it could be illegal to yell the slur in public, it wasn’t in this particular case.
“It very much depends on the circumstances and context of the case whether such words would attract criminal liability. On the facts of this case, they do not,” Flynn ruled.
He said in order to constitute a crime, an incident must “disrupt the ordinary and customary” use of a public place. He said “something more than emotional upset and a momentary interruption in a conversation is needed to constitute the criminal offence.”
Arguing on appeal Wednesday, Deveau said it was that momentary interruption that caused Gillis’s conversation with Breen to be derailed, thereby disturbing her work.
“We believe not enough weight was given to the fact that she was at that time working as a reporter and not in a casual conversation with then-councillor Danny Breen,” Deveau said.
He also took issue with defence lawyer Rosellen Sullivan’s submissions regarding Gillis’s actions.
“She says the complainant chose to feel humiliated and chose to take a course of action and therefore was disturbed. I respectfully disagree,” Deveau said. “I don’t think the complainant chose to feel humiliated, just as she wouldn’t have chosen to be angry or annoyed or whatever the case may be, nor did she choose to have her conversation derailed for her work.”
Making her submissions, Sullivan said she believed Gillis did the appropriate thing by stopping to take a photo of Penton’s licence plate, but in doing so, derailed her work.
“It is clear that Ms. Gillis’s response was that she was rightly fed up and frustrated. This was not a new thing, it was a trend that was happening and it had happened before,” Sullivan said. “Whatever happened after that was her choice.
“The momentary disruption was the result. The derailment was by choice. She decided to conduct herself in a perfectly reasonable, I’m suggesting, manner. But there was no disturbance because she chose to conduct herself in that way.”
Sullivan also said Penton’s actions didn’t meet the elements of a criminal disturbance, which relates to the “ordinary and customary use” of a space.
“If the public was somehow interrupted from using the dump, that would qualify,” Sullivan submitted.
Handrigan will deliver his decision on the appeal at a later date.