FHRITP: Don't get mad at the judge, get mad over a law that needs to be written

When Justin Penton screamed the extended version of FHRITP — that is, f--k her right in the p---y — at NTV Reporter Heather Gillis, he may not have opened himself to criminal conviction but he opened conversations on sexual harassment, workplace safety and freedom of speech.

Judge Colin Flynn was tasked with the decision of whether Penton's outburst violated s.175 (1) of the Criminal Code by causing a disturbance.

To the dismay of many (and the delight of a few — mostly with nameless, faceless avatars online), he determined that the alleged offence did not meet the legal requirements of causing a disturbance.

"Something more than emotional upset and a momentary interruption in conversation" was required and, in these precise circumstances, absent.

Swift, incredulous, but misplaced

Relying on a Supreme Court of Canada case, Judge Flynn determined Penton's outburst did not meet the legal test for a public disturbance which requires "an externally manifested disturbance of the public peace in the sense of interference with the ordinary and customary use of the premises by the public."

The court decision emphasised that FHRIPT is "a vulgar and offensive comment which was offensive to all right-thinking people, but it is not caught by the criminal law as presently enacted."

Public reaction to the decision was swift and incredulous.

It was also misplaced.

• Not always illegal to yell FHRITP at female reporters, judge rules dismissing case

A judge can only apply the law as it currently stands. For good reason — a society where we can be imprisoned or fined arbitrarily is as close to A Handmaid's Tale as one in which unbridled misogyny goes unchecked.

Contrary to buzz about town and headlines that raced across the country, the court did not determine screaming FHRITP is not illegal, it decided that one person, on one day, with one set of circumstances, did not meet the test for the charge before him.

The phrase FHRITP was never on trial.

If the dump was open and lines of pickup trucks heard the phrase, causing a commotion, would Penton have been found guilty? What if Gillis had been broadcasting live and children around the province heard, triggering a flood of angry phone calls to the station?

A different analysis may have been in order.

Could another law have been used?

Why wasn't another, more appropriate charge laid? The short answer is there may not be one. Presumably the police and the Crown determined the circumstances did not constitute a threat or an indecent act.

The charge of causing a disturbance was a clever attempt to pinpoint something criminally wrong in an act indisputably morally wrong.

Laws surrounding human rights and employment help protect the safety and respect of workers, but lack the ability to hold an outside perpetrator accountable.

Likewise, MHA Cathy Bennett's private member's bill targeting sexual harassment in the workplace is a welcome initiative, but she is limited by the division of powers between levels of government.

Criminal law is a responsibility of Canada's federal government. Only the crowd in Ottawa can amend the Criminal Code to prohibit behaviour by deeming it a criminal offence.

The offence of "criminal harassment" was only created in 1993. Prior to this, police laid charges of trespassing at night, loitering, or uttering threats – to various levels of success.

Crossing a line

By the government's own description, "criminal Harassment legislation is a response to the increasing violence against women, especially women leaving a marriage or intimate relationship."

The Criminal Code has recently been amended to address the sharing of intimate images without consent (commonly referred to as revenge porn), behaviour previously shoehorned into other related charges.

Any discussion of classifying FHRITP as a criminal offence inevitably raises important considerations including interaction with the Canadian Charter's freedom of expression, as well as the requisite intent ("I just did it as a joke, I didn't mean to hurt her!)" and the very real concern of over-policing the ability to insult or disagree with someone.

These are important positions — that do not automatically make one a "troll" — but they should not necessarily preclude action.

The law differentiates between legal and illegal ways to touch someone, take their money, and even get naked. It's not such a stretch to think it can determine exactly when vulgar, sexually violent insults cross the line.

One reporter's perseverence

Reporters, women, and people have a right to work in a safe work environment free of sexually explicit, demeaning conduct. Workplaces cannot always protect employees, particularly those whose trade takes place amongst the masses.

To paraphrase that oft-repeated quote, "I do not agree with what you have to say, but I'll defend to the death your right to say it – without being interrupted by a violent, sexist slur."

Because of Gillis' perseverance, the assailant confessed and faced sentencing in the Court of Google where his name will remain associated with that horrific acronym. Perhaps that's punishment enough for those who deem it a moral, but not a legal, offence.    

None of the debates inadvertently triggered by Penton have easy answers for lawyers or armchair legal commentators alike.

• A sick, depraved prank was played on me, and I'm angry

But this time even non-lawyers get to use one of our methods.

If you don't like the decision, just appeal — to politicians for change in the law.