Clients often ask me, “Why do they want to go after me?” They can’t understand why the spotlight is on them. Their charges are small potatoes compared to the real crimes that take place in the country. “Why don’t they go after the real criminal, big guys, the drug lords and the murderers?” they ask me. “Why are they picking on me”?
I tell them the prosecutor may conclude that prosecuting them isn’t in the public interest, but don’t count on it. Hoping the prosecutor will just not care enough isn’t a legal strategy. They have to be prepared to go to trial. Once the prosecution has you in their sights, they’re unlikely to just turn around and say never mind.
So we shouldn’t be surprised that 89-year-old Audrey Tobias didn’t escape prosecution that was righty described as “ham-fisted [and] mean spirited” by Justice Khawley in his reasons for acquittal yesterday.
This is a woman who, “was a model citizen, had served with the Women’s Naval Service in World War II” refused to participate in the census because Lockheed Martin provided the software used to compile the census data. Horrors! Even writing those words leaves me wondering, “Who cares?”
Well Statistics Canada and the Public Prosecution Service of Canada cared enough to prosecute an 89-year-old war veteran. Why? Because laws are laws right? I mean if we don’t follow the laws around the census, we’re just one step away from anarchy. People will thumb their noses at census takers and walk on grass where signs marked “DO NOT WALK ON GRASS” are posted.
One phrase you’ll often hear in Canadian courtrooms is does this “bring the administration of justice into disrepute.” Our justice system is rightly concerned that the matters and people we prosecute should not offend our sense of justice and fair play. If you sat down and thought up a scenario that would lead Canadians to conclude that our justice system can be a capricious joke you couldn’t come up with a better checklist of essential ingredients:
- World War II veteran
- Quiet octogenarian
- Refuses to participate in census
- Model citizen
- Willingness to go to jail
What more is necessary to bring the administration of justice into disrepute than spending precious public dollars on prosecuting an 89-year-old war veteran for refusing to fill out her census form?
Criminal lawyers will often tell each other to pick the hill you want to die on. You can look at a file and identify a hundred issues but time, money, strategy and legal judgment demand that you narrow things down. Don’t go to trial arguing every little thing when you can focus on the few big things, which will benefit your client. Similarly in Ms. Tobias’ case the prosecution may have been right at law but it picked they wrong hill to die on. And for that they have only themselves to blame. It will be this trial that people will refer to when discussing how unfair our justice system can be.
So the next time you think the State won’t care about your little itty bitty legal transgressions; that you’re a small fish; that your case doesn’t amount to a hill of beans; that you just had a little bit of weed; that you blew over just a little bit; that you only hit him once; that the copper set you up; that you’re a good guy; that you’ve never been in trouble with the law; that you swear this will never happen again and that if I just tell the prosecutor all this she’ll realize what a mistake she’s making prosecuting you just think of 89-year-old, WW II veteran Audrey Tobias and what they did to her.