Crown should toss beer-can mischief charge

The criminal law is a blunt instrument. It should be used with restraint.

This is a principle that should impel the Crown Attorney to drop the case against Ken Pagan who appears in Toronto’s Old City Hall court on November 24 on a charge of mischief for allegedly hurling a beer can onto left field during a recent Blue Jays playoff game.

Prosecution not in public interest
It’s a principle that the Crown appears to have overlooked in another high-profile mischief case that’s ongoing in Halton. Anita Krajnc was charged after she gave water to pigs in the back of a truck taking them to slaughter.

In the case of Mr. Pagan, an ex-Post Media sports copy editor, there are further reasons for dropping the charge: The success of a prosecution is questionable and it’s not in the public interest.

“Interrupting operation of Rogers Centre”

Police have charged him with committing mischief by interrupting the lawful operation of the Rogers Centre.

In the Jays’ October 4 wild-card game, a beer can flew out of the stands and landed near Baltimore Orioles outfielder Hyun Soo Kim as he caught a fly ball. Play stopped briefly while the Orioles’ manager conferred with an umpire and the can was removed from the field.

If prosecuted by summary conviction Mr. Pagan faces up to six months in jail and/or a fine of up to $5,000. (The Crown is not likely to prosecute by indictment where greater penalties may be imposed.)

In his defence, Mr. Pagan may be able to rely on the legal principle that the law does not concern itself with trifles. In other words, the interruption was so slight it was not a crime.

Or the Crown may be unable to prove that Mr. Pagan was the perpetrator. A photo shows him drinking from a plastic cup.

Evidence may fall short

That the evidence may fall short or that there may be a good defence are considerations that the Crown Attorney must take into account in assessing whether to go ahead with the prosecution. (In Ontario, police decide whether to lay a charge and the Crown then determines if it should be prosecuted.)

If there is no reasonable prospect of conviction, the Crown must drop the case. If the prosecution is viable – and it may be – the Crown must then assess whether it’s in the public interest.

Clearly it’s not: the offence is minor and no harm was caused.

Trespass charge more appropriate

A criminal prosecution is not needed to send a message. The alleged hurler has been shamed in the media and reportedly was fired from his job and banned from the Rogers Centre.

There has already been enough public reaction and condemnation to deter like-minded boors and boneheads.

If any prosecution is warranted, a more fitting charge would be trespass, a non-criminal offence. Maximum penalty: a $2,000 fine.

(Tossing a beer can onto the field during play is trespass because the terms of every ticket sale stipulate that the holder not engage in conduct that might interfere with the game. Ticket holders commit trespass if they engage in an activity they’ve been warned is prohibited.)

Accused voices virtues of veganism

Meanwhile the trial of Ms. Krajnc will enter its seventh day on March 9, 2017. In July 2015, she used plastic water bottles to provide water to pigs through slats in a truck that had stopped. The truck driver asked her to desist and called police when she refused.

Police charged her with mischief for interfering with the lawful operation of the pig farm.

She has used the trial as a soapbox to trumpet the virtues of veganism.

It may be too late to stop the prosecution of Ms. Krajnc. But let’s not waste valuable criminal court resources on Mr. Pagan. The Crown should drop the charge against him or replace it with a ticket for trespass.