Last October, an 89-year-old lady named Audrey Tobias was acquitted for not filing out her census form. As some of you may know, Ms. Tobias did not forget, but in fact, purposely decided not to complete the form.
According to section 31 of the Statistics Act, it is an offence to “refuse or neglect” to fill out a census form or to return it by the date and in the form required, or to knowingly give false or misleading information. Such offence carries a penalty, on summary conviction, to a fine of no more than $500 or to imprisonment for up to three months or to both.
It is unknown whether Ms. Tobias knew about the penalty when she made her decision or whether she learned about it after. Ms. Tobias said she would not pay the fine because doing so would amount to an admission of guilt. However, she said she was willing to go to jail before making any kind of concession. She even said she was curious about what it would be like to spend some time locked up. Now that is a tough granny. Or perhaps, she has been watching Orange is the New Black way too much.
But, in all seriousness, why would a sweet 89-year-old lady prefer to go to jail rather than filing out her census form? Well, Ms. Tobias is a peace activist. When she learned that the software used to process the census is from Lockheed Martin, a company self-described as “the prime contractor for the modernization of the combat systems on-board the Halifax Class frigates,” she was not very happy.
Ms. Tobias’ lawyer argued that enforcing the provision would violate her freedom of expression and freedom of conscience. Although Judge Khawly (the presiding judge) did not accept this argument, he acquitted Ms. Tobias on the basis that she lacked intent. He also sent a message to the people at the Justice Department saying that whoever decided to prosecute Ms. Tobias needed to take a course in marketing.
While I was happy to hear that Ms. Tobias was acquitted, I take issue with the basis upon which this case was decided. Apparently, Ms. Tobias struggled to remember the exact circumstances surrounding her failure to fill out the form. Thus, her testimony was inconclusive to determine that there had been actual intent.
Now, does the section not say that an offence is committed when a person refuses or neglects to carry out the duties set out by the Act? So, even if Ms. Tobias had not consciously refused to fill out the form (which she did, she said so herself!), she neglected to do it. Therefore, she is guilty! But that is not the point. The point is that it is disrespectful to brush aside her convictions and her desire to make a political point just because she is elderly. It is disrespectful, condescending and paternalistic.
To be clear, I am not advocating for the incarceration of Ms. Audrey Tobias. I also understand the position of Judge Khawly. If I had been in his shoes, I would have done the same. I mean, unless Ms. Tobias had done something heinous, how can a person have the heart to do otherwise? So I see why he interpreted the law and assessed the evidence the way he did.
My point though is that the heroic acts (yes people, heroic, because she was willing to go to jail) of Ms. Tobias were disregarded on the basis that she is elderly and on the assumption that her memory is failing. Granted, she did get media attention and got her point across. But, when you look at this case and compare it with the case of Janet Churnin, who was taken to court for the same reasons, you will see what I am talking about.
At first, when I learned about Ms. Churnin, I was irritated that some woman had tried to imitate Ms. Tobias. I have no patience for copycats. There is only one Audrey Tobias! But then, I found out that in fact 54 people had been originally charged with the same offence. I guess Ms. Churnin had been one of them. However, Ms. Churnin’s case was decided differently. She has been ordered to complete 50 hours of community service and given one year to do so.
The biggest difference, however, was that this time, the concerns of this individual were taken a little more seriously. Ms. Churnin, just like Ms. Tobias, opposed Lockheed Martin’s involvement. She was also concerned that Lockheed Martin or the US government would have access to our information. Finally, Ms. Churnin’s actions were a form of protest to the decision of replacing the long-form census with a voluntary national household survey (can anyone see the irony there?). Thus, the head of census operations at Statistics Canada was present at trial and testified that it was not possible for Lockheed Martin to access census information. Accordingly, a modest attempt to address her concerns was made. Whether this was done at the initiative of the court, the prosecution, or the defence, it is however unknown.
Again, I am not advocating for the retrial of Audrey Tobias so that she also is asked to do community service or is sent to jail or made to pay the corresponding fine. The point is that we ought not to disregard what people like Audrey Tobias have to say. Like she said, “People are people until they’re dead, old or young.”
Although Judge Mocha, in deciding Ms. Churnin’s case, acknowledged the significance of Ms. Churnin’s views, she stated that Ms. Churnin could have accomplished her “peace initiatives without violating the law.” A comment which is totally fair. Indeed, we do not tolerate tax evaders who fail to pay taxes just because they do not agree with the rationale behind the levy. Then again, sometimes civil disobedience is necessary in order to get one’s point across. I mean, what would have happened if Rosa Parks had not refused to give up her seat?