TORONTO – 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.
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.
But the judge noted there are two elements that the Crown must prove for a conviction: the act and the intent.
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.
Tobias stood defiant but soft spoken on the courthouse steps, saying she was willing to be dragged off to jail if she had been found guilty.
“I would have done whatever was necessary because I wasn’t willing to fill it in,” she said. Asked whether she had been afraid of the prospect of spending a maximum of three months behind bars, she shrugged.
“I was curious,” she said. “I wondered what it would be like.”
She wasn’t, however, willing to pay the maximum $500 fine the Statistics Act charge carried because she said that would be an admission of guilt.
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.
Tobias said she didn’t think her age had anything to do with it.
“People are people until they’re dead, old or young,” she said.
There were 3,700 Canadians who refused to fill out the census, Tobias’s one-day trial heard, and that list was whittled down through various criteria to about 53 people who Statistics Canada recommended taking to court.
But the Department of Justice didn’t have to go along with prosecuting an elderly peace activist who was a “model citizen,” Khawly said.
“Could they not have found a more palatable profile to prosecute as a test case?” 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?”
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.
Lawyer Peter Rosenthal, who represented Tobias pro bono, had argued that forcing her to complete the census would violate her freedoms of conscience and free expression.
Khawly rejected the Charter arguments he characterized as a “Hail Mary pass,” but admitted he was briefly captivated by the “siren song of the defence.”
“Only once I paused long enough, did the reality of giving in to this invitation hit me,” he said. “Rational thought replaced emotion. To accede to the defence view struck me as even more disturbing than Justice’s lack of sensitivity and feel for picking their battles.”
No reasonable interpretation of the law can justify the defence’s Charter arguments, no matter how “sympathetic” the accused, Khawly said.
“It is not readily apparent that answering the short, biographical census questions amounts to forcing a message on Ms. Tobias,” he said.
“(The defence’s argument) lacks any nexus between Ms. Tobias’s conscientious beliefs nor her freedom of expression and the legal requirement to complete the census questionnaire.”