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.