Poetic licence and freedom of expression are alive and well in Ontario. In other words, the “Pothole Poet’s” bad rhyme, isn’t a crime.
The Court of Appeal has rewritten the Mississauga senior’s conviction of uttering a death threat, finding that while the prose is “amateurish, foolish, and offensive,” it’s not threatening.
Not a great review, but what’s a court to do? Well, they can acquit Antonio Batista, 76, who last summer was given a conditional discharge subject to a 12-month term of probation.
Justice Susan Lang, writing for the court, said Batista got his dander up at his city councillor Pat Saito, and authored the poem in “frustration over Ms. Saito’s responses, and delayed responses, to his communications with her office.”
It appears the straw for Batista was getting a property tax bill for taxes from a year when he didn’t own the property.
“Unhappy” that he couldn’t reach Saito personally for a variety of reasons stated by her office, and having read in a newspaper that she had jokingly said potholes could serve the purpose of slowing traffic, Batista got out his pen, so to speak.
Apparently it was the reference to potholes that gave him the idea for his poetry, said Lang, noting Batista had immigrated from Portugal and has some difficulty with English.
Here’s part of the poem: “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.” (It looked like bad haiku to our eye.)
Then, the feisty, retired labourer scurried about his neighborhood posting his doggerel on newspaper and mail boxes.
Justice James Keaney, the trial judge, found Batista crossed the line from permissible political comment to
prohibited criminal conduct.
But the appeal court said no, Keaney’s decision has to go.
“All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited,” said the court.
It comes down to what’s reasonable:
“In light of the entire context, no reasonable person, fully informed, could interpret [Batista’s] poem as a threat that could be taken seriously,” said the court.
It added, “The reasonable person would be informed about all the circumstances, including that the ‘poem’ was written by an elderly retired man who was not proficient in the English language and had the benefit of only three years of education.
He or she would also know that [Batista] was frustrated by his perception that his councillor did not respond promptly or satisfactorily to his concerns, but that the author had never before given any indication that he would act on his concerns other than in the political context.”
The court further stated that, “The reasonable person would know that [Batista] did not send this poem to the councillor, but posted it publicly for the stated purpose of public discourse in a way that the author could be easily identified.”
The judgment went on to further find that, “The informed, reasonable person would also be cognizant of the right of ordinary citizens to criticize and ridicule their elected representatives. . . .
“In my view, in the light of the entire context, no reasonable person, fully informed, could interpret [Batista’s] poem as a threat that could be taken seriously.”
That sounds reasonable. And, it’s poetry to our freedom of speech-loving ears.
- Gretchen Drummie
