Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. PENTON, 2022 NLCA 47 DATE: AUGUST 2, 2022

FACTS: The accused was acquitted at trial of the offence of causing a disturbance, contrary to section 175 of the Criminal Code.  The accused had shouted an obscenity at a journalist, as he drove past her in his truck.  The circumstances involved were described in the following manner (at paragraph 3):

On April 24, 2017, the complainant conducted an interview with a City of St. John’s councillor near the entrance to the City’s waste management site on a morning when the site was closed. She had just completed her interview, turned off her camera, and was checking some facts with the councillor when Mr. Penton drove by along the road leading into the waste management site. As he passed by the complainant and the councillor, Mr. Penton shouted an obscenity. There was no one else in the area.

The Crown’s appeal to the summary conviction appeal court was dismissed. The Crown was granted leave to appeal to the Court of Appeal for Newfoundland and Labrador.

HELD: The appeal was dismissed.  In upholding the acquittal, the Court of Appeal concluded as follows (at paragraph 28):

In summary, to disturb a user of a public place does not amount to a disturbance unless there is an interference with the ordinary and customary conduct or use of the place. In short, while Mr. Penton’s shouted obscenity disturbed the complainant and the City councillor, it did not cause a disturbance that would support a conviction under section 175.

Attempt to Cause a Disturbance:

The Court of Appeal rejected the argument that that an attempt to cause a disturbance had been proven (at paragraphs 31 to 33):

It follows that having an intent to commit the offence is a necessary element in proving the attempt to commit it (see also, section 24 of the Criminal Code). In this case, the trial judge found that there was no evidence from which to conclude or infer that Mr. Penton intended to cause a disturbance in a public place by shouting the obscenity as he passed by the complainant and the councillor; that is, there is no evidence that Mr. Penton intended to cause a disturbance, but failed to achieve his goal.

The appellate judge found no error in the trial judge’s determination that the Crown had not proven the offence of attempt to cause a disturbance in a public place. However, in reaching his conclusion, the appellate judge relied on case law that pre-dates both Williams and United States of America v. Dynar, [1997] 2 S.C.R. 462, which is referenced in Williams. The approach discussed and adopted in those decisions is the applicable law. The four-step approach set out in the decision of the appellate judge, at paragraph 20, and the case law relied upon by the Crown in this appeal have been overtaken by the law set out in the more recent decisions of the Supreme Court of Canada. It follows that the appellate judge erred in the analytical approach that he applied in assessing the trial judge’s decision.

However, the trial judge, in fact, applied the correct law when he found that it was not proven that Mr. Penton had the requisite intention to cause a disturbance of the peace when he shouted the obscenity. In the result, the attempt to commit the offence was not proven.