The further removed a criminal prosecution is from run-of-the-mill narratives or the typical accused, the tougher a decision a court faces. But the saving grace of our law for judges is its flexibility.
Last week, faced with a novel rationale for violating the law and an exceptional accused, an intellectually agile Ontario judge disposed of a criminal charge that never should have been.
Justice Ramez Khawly of the Ontario Court of Justice acquitted 89-year-old Toronto war vet Audrey Tobias of a charge of refusing to fill out the federal government's short-form census. The elderly peace activist, who served with the Women's Reserve Naval Service during the Second World War, hadn't objected to the census itself. Rather, she objected to the company that provides the software Statistics Canada uses for data analysis, U.S. weapons contractor Lockheed Martin.
She took pains to underline that she was a peace activist, not a pacifist.
"I am a veteran of World War II," she said. "I am, however, opposed to the indiscriminate use of weapons that maim and kill civilians."
Statistics Canada laid the charge and drove the prosecution. The Crown agency was out to make an example of her. It wanted to illustrate the penalties that befall Canadians who decline to complete its census form.
But the prosecution backfired. Big-time.
Justice Khawly labelled it a "ham-fisted, mean-spirited prosecution," and lambasted Statistics Canada.
"Could they not have found a more palatable profile to prosecute as a test case? 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?"
Tobias had made it clear that if found guilty she would not pay any fine levied by the court (maximum $500), because payment would be tantamount to an admission of guilt. She therefore almost inevitably faced imprisonment if convicted.
The prosecution relied on the undisputed facts of the case -- Tobias declined to complete the census following several requests. The defence, in turn, raised arguments that the charge violated her rights of freedom of expression, conscience and religion under the Charter of Rights and Freedoms.
The judge roundly dismissed Tobias's charter arguments. But he even more vigorously dismissed the prosecution's arguments for conviction.
Instead, he pioneered his way to acquitting Tobias by performing his own careful review of her testimony.
He expressed concerns about her powers of recollection in recalling events more than two years old at the time of trial. He wondered if "the bold words of refusal" she recalls were coloured or hardened by subsequent events and publicity. He concluded the Crown had not proven beyond a reasonable doubt she intended to breach the Statistics Act on the day in 2011 she refused to participate in the census.
By declining to convict, the judge accomplished two things.
He cleverly avoided being made an unwilling partner to creating, as he put it, "a martyr in the making." He made it plain he didn't appreciate his judicial authority being co-opted into an unseemly conviction. His blunt language reflected his frustration the prosecution was even launched.
But he also adroitly avoided being seen as ignoring or overriding the law, simply because he was trying an elderly, frail and sympathetic accused.
Justice Khawly recognized that sometimes the law demands creative judgment. And so he, of necessity, attacked the fuzzy edges of the prosecution's evidence and disdained the mechanical application of legal rules.
By doing so, he made the law work for both Audrey Tobias and our criminal justice system.
Douglas J. Johnston is a Winnipeg lawyer.