‘Court is inclined to actually take the file and throw it out the window’

By John L. Hill

Law360 Canada (March 10, 2023, 10:36 AM EST) --
John Hill
John L. Hill
It has been said that every kid wanted to be Mr. Rogers’ neighbour. The community depicted in the children’s TV show, Mr. Rogers’ Neighborhood, was a place of tranquility and joy. Yet from time to time there were disruptions but all would be quelled by applying reason and good sense.

To an outside observer, the Montreal suburb of Beaconsfield would seem to be that kind of jovial place to live. The neighbours and their children all knew each other and got along. They even knew the names of each neighbour’s pets. That is with one exception. Michael Naccache, a 34-year-old who lived on the street with his brother and parents. He despised the kids who played on the street and found one neighbour particularly loathsome — Neall Epstein. In this situation, Naccache didn’t echo the sentiments of Fred Rogers.

Instead, he might have been better advised to take to heart the admonitions of another Mr. Rogers, Will Rogers, who said, “Never miss a good chance to shut up” and “If you find yourself in a hole, stop digging.”

Naccache had Epstein charged with criminal harassment and uttering death threats. The alleged events occurred between March and May 2021. Epstein was acquitted but not before a judge of the Court of Quebec issued the most remarkable and scornful admonitions against a complainant one is ever likely to read (R. v. Epstein 2023 QCCQ 630). Justice Dennis Galiatsatos begins his decision painting a picture representing “a blissful snapshot of a suburban utopia.” Then the complainant enters the scene.

Naccache deplores the facts that children are playing sometimes on or near the travelled portion of the residential roadway. Sometimes they leave their bikes or toys near the street. He detests the chalk drawings the children leave on the sidewalks. Most of all he finds Epstein particularly deplorable for raising a middle finger against Naccache.

Naccache called the police and had Epstein charged. He had video evidence he thought would convince a court that he was being mistreated. The problem was that the video showed the real person to be feared was Naccache himself. He and family members drove down the streets at high speed and sometimes narrowly missing collision with playing children. His videos did not illustrate that the children were playing on the street and disrupting the flow of traffic. His testimony was unimpressive. The court became convinced that the complainant was a loose cannon focused on making Epstein’s life as difficult as possible.

After Naccache was unable to present a tale of woe and demonstrate his own credibility and reliability, the Crown refused to cross-examine Epstein and invited the court to acquit. The judgment is essentially an admonition of Naccache.

The judge starts by saying,” … the Court is resoundingly acquitting the accused. Since I’m hesitant to draft an entire decision in bold and caps-lock characters, I offer the following observations instead.” The judge continues for 12 pages deconstructing Naccache’s evidence. The judge chastises the complainant for weaponizing the criminal law and subjecting the accused to two years of court proceedings when the accused “committed no crime whatsoever.” He then adds, “This injustice ends today.”

The trial judge concludes, “In modern day vernacular, people often refer to a criminal case ‘being thrown out.’ … Cases aren’t actually thrown out, in the literal or physical sense. Nevertheless, in the specific circumstances of this case, the Court is inclined to actually take the file and throw it out the window, which is the only way to adequately express my bewilderment with the fact that Mr. Epstein was subjected to an arrest and a fulsome criminal prosecution. Alas, the courtrooms of the Montreal courthouse do not have windows.”

Aside from the humour a reader of the case will appreciate, real harm to an innocent accused has been done. How closely do Crown attorneys screen cases before pushing such matters to trial? Unfortunately, there is no award of costs payable by either the complainant or the state when frivolous charges are laid. Maybe this case raises the question that there should be.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

Photo credit / leremy ISTOCKPHOTO.COM

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.

LexisNexis® Research Solutions