Causing a disturbance by foul language

Does the use of foul language cause a disturbance? Perhaps, it depends on the circumstances.

See today's decision in R. v. Swinkels, 2010 ONCA 742 where the Court holds:

[18]          Generally speaking, the trial jurisprudence has held that shouting obscenities at police officers is not a disturbance in and of itself: see for example, R. v. Wolgram, (1975), 29 C.C.C. (2d) 536 (B.C.S.C.); R. v. Peters, (1982), 65 C.C.C. (2d) 83 (B.C.C.A.).  In a recent Ontario case, R. v. Osbourne, 2008 ONCJ 134, two police officers questioned two individuals by the roadside.  The defendant, Osbourne, refused to answer the officers' questions, shouted abuse at them, and walked away.  The following reasons of the trial judge at paras. 21 and 22 in Osbourne provide some helpful guidance:

[T]he law is clear that yelling and swearing in a public place is not in itself a criminal offence.  Equally, the existence of emotional disturbance, such as Constable Correa's belief that the defendant's language was vulgar, aggressive and inappropriate, is insufficient to establish a disturbance within section 175(1)(a).

I accept that by the time of Mr. Osbourne's arrest a crowd of between 10 and 15 people had gathered outside of the strip plaza.  Some of these people were voicing anti-police sentiments.  Yet, based on the evidence of Constable Correa, I find that people did not begin to come out of the plaza and do more than briefly observe the situation until after the defendant had been unlawfully detained and cautioned for causing a disturbance when there was no disruption of the public peace.  But for the actions of the police in disregarding his rights, Mr. Osbourne would not have been yelling and swearing.  I find that any disturbance of the public was attributable to the conduct of the police.

[19]          According to Lohnes, at p. 180, "the test for a disturbance in or near a public place under s. 175(1)(a) should permit the court to weigh the degree and intensity of the conduct complained of against the degree and nature of the peace which can be expected to prevail in a given place at a given time."  The court also observes:

[D]escriptions of conduct without more may be inadequate; the context in which the activity takes place must be considered so that the countervailing interests can be duly weighed. The lawful jangling of the street musician at an urban intersection at noon may become criminal if conducted outside a citizen's bedroom window at three o'clock in the morning: p. 175.

[20]          As Lohnes notes at p. 178-179, the objective of 175(1)(a) "was not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities."