ONTARIO COURT OF APPEAL HEARS ARGUEMENTS ON CRIMINAL POEM

Last year, November 23, Royson James wrote a column for the Toronto Star entitled, Councillors need lesson on economy. His column is a litany of wrongs, and ends with the call: “Councillors should be hanged, one a day, at noon, in Nathan Phillips Square. Charge admission. We'll net enough money to pay off most of our civic bills.”

Mr James was NOT charged and convicted of uttering a death threat. But Antonia Batista, 76, was. He was convicted last year of uttering a death threat in a poem.

A complaint had been made by Ward 9 Mississauga Councillor, Pat Saito, after Bastista posted 5 copies of his doggerel poem on utility poles in his neighbourhood complaining about Saito’s obsession with potholes. The poem, lyrically entitled, Parked Cars and Potholes in the City of Mississauga, contained this “death threat”:

Pat pot, patch pot
Look here look there
Pat pot patch pot
There is a car parked here
There is a car parked in there
This kept a Good looking lady from her
Working place and
By looking at pot holes She
Thought about doing
Nothing and winning the Race
When she got to Churchill Meadows
She was out of the Race
But She was too far behind in
Her work, and without thinking
She backed up and without making
Sure that it was safe to do so
She provoked a big accident
We are going to dig a pothole
About six feet long and three feet wide
And five feet deep to hide
Her body and God will take care
Of Her Soul, but We cannot
Forgive her for doing nothing
She can keep running
At a good pace but
We will make sure that she is in HEAVEN
And out of the Race
So please God take care
Of this SOUL forever and
EVER

But, but, this is satire, ain’t it? University of Toronto literary prof., Dennis Duffy, testified that he regarded the poem to be satire, adding; “Many of the great satires are in foul taste, and that is where they get their effect." Justice James J. Keaney briefly explained that because Batista did not have a high level of education it was unlikely he could know what satire was and therefore he could not have written the poem in jest. Councillor Saito, when told of the conviction, said she was “glad the poem was recognized as a death threat.”

Batista's lawyer, Clayton Ruby, stood before the Ontario Court of Appeal yesterday, and said the convicting judge was an expert in law, not in literature. He said the Justice Keaney mistakenly believed that he knew what satire was, thereby striking a blow against freedom of expression.

Ruby argued, “This judge did not realize that his training was in law, not in literature. There is no sign that this judge exercised the requisite caution that flows from the fact that this was political speech. We protect not only good and popular expression, but also unpopular and even offensive expression."

Exerpt from Globe & Mail:
However, Crown counsel Megan Stephens argued that no reasonable person could mistake Mr. Batista's poetry as being anything less than a serious threat to the well-being of a vulnerable political figure. She said that while being interviewed by police, Mr. Batista showed genuine anger toward Ms. Saito - proving that he had not merely satirized her in good fun.

Ms. Stephens also argued that Judge Keaney was perfectly capable of understanding the meaning of satire without having an expert explain it to him. "It is implicit in his reasons," she said. "He was aware of this evidence, but he did not find it overly helpful or necessary."

At one point yesterday, Judge Sharpe wondered aloud about whether Mr. Batista's writing really required expert analysis. "I want to be fair to your client, but I don't think he would describe himself as one of the world's great poets," he observed.

"Whether you are good, bad or indifferent, experienced or inexperienced, it is important to understand satire in its context," Mr. Ruby replied. Mr. Ruby also noted that a would-be murderer is unlikely to post death threats in public.

Late in Mr. Ruby's presentation, Judge Lang noted that the legal test Judge Keaney was bound to apply in the case involves whether a reasonable person would perceive Mr. Batista's poem as a death threat. "The reasonable person is not trained in literature," she said. "I'm still having trouble with your argument."

"The reasonable-person test does not in any way negate the use of expert evidence," Mr. Ruby countered. "You would want that person to have as much information as possible. Once you understand satire and what it is, this is clearly satire."

The court reserved judgment on the appeal.

Sources: Globe & Mail, Globe & Mail editorial, Toronto Star.