Friday, October 18, 2013

Ontario Judge Denounces Rule of Law

I edited down a National Post article to brief you on the idiocy:
A Toronto judge lambasted the government Wednesday for its prosecution of an 89-year-old peace activist who refused to fill out the 2011 census, and found her not guilty.
[T]he Department of Justice didn’t have to go along with prosecuting an elderly peace activist who was a “model citizen,” Khawly said.
"I mean, really, could the defence have scripted anything better for their cause? Did no one at Justice clue in that on a public relations perspective, this was an unmitigated disaster? Are they that myopic that they could not see the train wreck ahead?"
“Could they not have found a more palatable profile to prosecute as a test case?” Khawly said.
Tobias was a photogenic “martyr in the making,” Khawly said.
“Anyone in Justice who had not seen that coming should be ushered immediately into an introductory marketing course,” he said.
First of all, the Honorable Justice Ramez Khawly has a rhetorical flair for excessive admonition that is perfectly appropriate for a hack blogger (e.g. me) and not at all appropriate for a magistrate.

More importantly, though, is Justice Khawly really saying prosecutors should focus their efforts on sending marginalized populations to jail? It seems too obvious to have to say but, just so we're all clear: The law should be applied equally to everyone. That's a pretty key part of what the rule of law is all about. The law should govern, not executive discretion.

Khawly should have focused on applying the law to the facts in front of him and let the public decide for itself what is photogenic. He isn't paid $265K per year plus taxable benefits to be the world's worst PR guy for an institution that should be less concerned with appearances and more concerned with spreading justice around evenly. Leave the politicking to the politicians, hmm?

While it is true that the judiciary and Crown should not operate in such a way as to bring the administration of justice into disrepute, that is only true insofar as a cherished constitutional or moral principle is in play, like freedom of conscience or freedom of expression. Two principles which, by the way, Khawly rejected as being applicable to the case before him. Instead he focused on the proud common law tradition of giving special treatment to old white women with government connections (in the form of a.

Hypothetically, if Justice Khawly was right -- which, to be clear, he is definitely not -- and superficial optics are really of foremost concern in criminal prosecutions, then the Crown should be targeting people precisely like every-woman-stand-in Ms. Tobias to reinforce the notion that the short-form census is still mandatory. That makes a lot more sense than adding another line to an Aboriginal convict's criminal record. As evidence, I submit the fact that every major Canadian news outlet reported on this story even though no one has ever been sent to jail for violating this provision, so the threat of a jail sentence was always theoretical, especially for such a "sympathetic" accused. Ms. Tobias was going to get a $500 fine, at worst. You just don't see that level of coverage when we're locking up another disenfranchised Aboriginal person for years upon years. When that happens it's not special but when an old white woman is facing a $500 fine then that's noteworthy to the degree of being newsworthy.


Speaking of crimes that aren't prosecuted enough, when are we going to crack down on this practice?

The other dumb thing this judge did is momentarily raise the bar for proving mens rea about ten feet for this woman. Here's a summary of that facet of Justice Khawly's abject mental deficiency in this case (emphasis is mine):
Audrey Tobias admitted that she refused to fill out the basic personal information the census required because it was processed using software from U.S. military contractor Lockheed Martin.
Tobias’s testimony left Ontario Court Judge Ramez Khawly unsure whether she was accurately recalling her intent for refusing the census nearly 2 1/2 years ago, or if the passage of time has “dimmed her memory.”
That left Khawly with reasonable doubt of Tobias’s intent and he said he therefore must acquit her.
Now normally, a guilty mind for an act can be inferred from the action itself. For example, if you punch someone in the face then there is a strong presumption you meant to punch them in the fence. You can maybe explain you didn't mean to but the onus is going to be on you to come up with a pretty good explanation why that punch was unintentional. It is not strictly necessary for the Crown to get you on the record as saying "I purposefully punch you!" at the time of the offence, shortly afterward and at trial.

The way Khawly puts it, however, you would think that for the accused to be found guilty he must state that he fully intended to commit the crime in open court and the judge must have no reason to disbelieve this confession. The best defence in Khawly's court would be to show up and confess your crime on the stand but be heavily inebriated at the time so Khawly couldn't trust what you were saying beyond a reasonable doubt. In that situation he would have no choice but to find you not guilty even if you did write a 20-page letter to your victim saying you intend to assault him beforehand and a 5-page follow-up memo confirming the incident took place as planned.

And it's not like refusing to complete the census is one those terrible crimes for which the mens rea element should be very high because of stigma or what not. The maximum jail time is three months, which is half as much jail time as you can get for pretending to practice witchcraft. Refusing to complete the 8 questions on the short-form census is a lot closer to speeding than it is to murder and speeding is an absolute liability offence, which means lack of mens rea is no defence at all.

Even Ms. Tobias's own lawyer was dumbfounded by the judge's disregard for legal norms:
Her lawyer, Peter Rosenthal, said outside court that it was unexpected for the case to come down to the “exact nuance of what she was thinking as she failed to fill out the form.”

“It’s a very unusual ruling in my experience and opinion,” he said.

“He wasn’t criticizing her for being an older person with a lack of memory. I mean, everybody reframes things as you rethink something that happened a couple of years ago.
I really hope the Crown appeals this acquittal.

Tuesday, October 15, 2013

Franco-Phoney

Thanksgiving has come and gone but I still have much to be thankful for. Near the top of the list is the fact that I am not a Montreal Canadiens fan. However, if I was, I would at least have a Halloween costume: Crystal Ball Huet. Here's how that would work.

"Douche" means shower in French. I don't know why I just thought of that.

First step for Canadiens-fan-me would be to stop writing online screeds deploring the culutral genocide I perceive the Anglos to be inflicting on my province of residence long enough to cash my pogey cheque that the ROC subsidizes. Then I'd make a trip to my local cardboard/NHL jersey shop. Whilst cursing the Leaf Maples de Toronto, I would buy three strips of cardboard and one of the many discount #39 jerseys lying around that the boutique's proprietor thought were such a good wholesale purchase during those heady days back in 2006 when Huet was a promising 32 year-old goaltender and (more importantly) a real French person, like legitimately from France!


Finally, I would make a cardboard sphere out of those three strips, spray the dome with the silver spray paint leftover from my inspired (and totally original) Nuit Blanche art project that satirized crass commercialism, pop a whole in the top and bottom, throw the necessarily* loose-fitting jersey over top and voilĂ : Crystal Ball Huet. If Canadiens-fan-me wants to put a cherry on top then he'll pull a hammy and react slowly to incoming objects.

*: Necessarily because (1) Canadiens-fan-me is fat even fatter; (2) it is a hockey goalie jersey; and (3) it has to fit over a dome, duh.

Ed. note: The editors would like to thank guest author Articulate Don Cherry for this post and, in the same breath, disavow the guest author's views and opinions which do not necessarily represent the staff at yourplacefamily.blogspot.com, even though it would be super nice if those thievin' Quebecois bastards could lay off our wallets for like ten seconds so we could enjoy just an instant of financial breathing space for once in our wretched lives. I mean, c'mon!

Sunday, October 13, 2013

Fork in the road

Back in May, Patrick Roy had a choice: he was pursued as a head coaching candidate by the Buffalo Sabres and the Colorado Avalanche. If he wanted, he could go to Buffalo where his son (Frederick Roy) was signed to their farm team and their top prospect (Mikhail Grigorenko) was graduating form Roy's very own junior team, the Quebec Remparts. He went the other direction and now, 5 months later, Colorado is 5-0 and tied for first while Buffalo is 0-5-1 and dead last in the league.

Saturday, October 5, 2013

Sometimes it's just not your day

“How come there’s a Father’s Day but no Son’s Day?” –Self-absorbed boy

“How come there’s a Labour Day but no Capital Day?” –Self-absorbed industrialist

“How come there’s a Labour Day but no Casearean Section Day?” –Less-than-intelligent mother post-surgery

“How come there’s a Presidents’ Day but not a Vice-President’s Day?” –Joe Biden

"How come there's a Guy Fawkes Day but not a Girl Fox Day?" Feminist Otherkin

“How come there’s a Martian Luther King Day but not a Terrestial Luther King Day?” –Hard-of-hearing man named Luther King who also believes aliens walk among us 

"How come we celebrate Christmas but not Michaelmas?" Devotees of the Archangel Michael and dumb people named Michael who have brothers born on December 25th named Chris

“How come there’s a holiday on Good Friday but not on bad Friday?” –Anthropomorphized Friday the 13th