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Alleged gaybashing evidence could be inadmissible in Fountainhead case: cop

Will cops shy away from presenting case as a hate crime to Crown?

PROBLEMS WITH ALLEGED GAYBASHING EVIDENCE? 'There are admissibility issues,' Insp John deHaas (above) revealed at a community anti-violence forum, May 2. 'We've got to go through the evidence again, and perhaps do more interviewing,' he said. Credit: Janet Rerecich

There may be “admissibility issues” with the evidence gathered so far in the alleged gaybashing at the Fountainhead Pub, the head of Vancouver’s diversity policing section revealed at an anti-violence community forum May 2.

Insp John deHaas of the Vancouver Police Department was responding to a question from the floor posed by Fountainhead co-owner Michel Duprat who wanted to know why hate crime designations are not being sought more often in gaybashing cases.

“I can tell you, part of my job is I look at those cases and I ask questions,” deHaas replied.

“This recent case that’s happening, I wasn’t satisfied by what was going to Crown either,” deHaas revealed.

“And I actually last week spoke to the [case] manager and said, ‘Lookit, you’ve got to re-look at this. I think there’s more work to be done.’

“There are conflicting pieces. There are admissibility issues,” deHaas told the forum.

“It’s complicated,” he added.

Following the forum, deHaas said he wouldn’t “comment specifically” on the Fountainhead case.

The alleged gaybashing at the Fountainhead occurred Mar 13 when a punch knocked Ritchie Dowrey to the ground where he hit his head.

Two months later, Dowrey, 62, is still in the hospital with severe brain damage, barely lucid.

Shawn Woodward has been charged with aggravated assault in connection with the incident.

“He’s a faggot. He deserved it. I’m not a fag. The faggot touched me. He deserved it,” Woodward allegedly told witnesses after the incident.

When asked directly if there are admissibility problems with regard to proving hate motivation in the attack on Dowrey, deHaas would only comment in general terms.

In some cases “the facts that have been so far revealed from the investigation — and then you have other information that comes through other sources,” he told Xtra West.

When pressed to reveal exactly how the Fountainhead investigation is going, deHaas said police are “looking at some of the discrepancies in the information” gathered.

“We haven’t completed the investigation. We’re definitely looking at all aspects; we’re definitely looking at the evidence that’s admissible,” he said.

Lindsay Wincherauk was at the Fountainhead when Dowrey got punched.

Wincherauk says he and several others followed the accused down Davie St after the alleged assault. He says when he asked the accused why he allegedly hit Dowrey, Woodward allegedly replied: “He’s a faggot. He deserved it.”

Wincherauk and the others who surrounded Woodward contained him until police arrived. Wincherauk alleges the accused then repeated to police that “the fag deserved it.”

Asked if there are admissibility problems with the comments Woodward allegedly made before witnesses, deHaas declined to comment.

“If the process gets screwed up because of something I said, I would feel awful,” he said.

“The accused is entitled to a fair trial and if I do anything that then the defence says, ‘Well, this was improper,’ the trial doesn’t go ahead the way it should.”

However, when pressed further, deHaas revealed that “not everything is clean” regarding the evidence collected.

“We’ve got to go through the evidence again, and perhaps do more interviewing,” he said.

“You don’t want something to be attacked by defence,” deHaas reiterated. “Our concern is what is the evidence we can present.”

“It may be at this point that there’s gaps that the police think need to be filled in order to either ensure that a conviction is entered,” criminal lawyer Garth Barriere speculates, “or ensure that there’s enough evidence of motive.”

As for Woodward’s alleged statements in front of Wincherauk, other civilian witnesses and the police, Barriere says they would be hearsay — but admissible.

There may be an argument that the alleged statement was made prior to police having an opportunity to read the accused his rights, Barriere notes.

Or there may be an argument that it wasn’t offered voluntarily, he adds. 

“Any statement to a person in authority has to be proven by the Crown to be beyond a reasonable doubt to be voluntary,” Barriere points out. “The statement also has to be taken properly in accordance with the Charter rights.”

However, Barriere notes, “It would appear to me that the statement at least to the civilians would be admissible.”

Then the question is how much weight is given to those witnesses, he says. “And obviously if you have more than one witness hearing the same statement, it tends to increase both the reliability and the credibility of the statement: reliability meaning did the person hear it correctly, and secondly is the witness being truthful about what they heard, which is credibility.”

Wincherauk says there were at least four others around him, including an acquaintance, John van Randen, and a Fountainhead bartender who “heard without question” Woodward’s alleged statement.

Van Randen says he remembers that night’s events “very clearly.”

He says he was “right next” to the accused when Wincherauk asked him why he allegedly hit Dowrey.

“He said, ‘He touched me. He’s a faggot. He deserved it,’ van Randen alleges. “And he also said, ‘I’m not gay. I’m not a fag.’

“And everybody heard those words,” van Randen alleges.

“I’ve had an interview with the Vancouver police,” van Randen adds, “and I’ve been put on video [talking about] exactly the chain of events of what happened outside, so I’m sworn under oath that this is truth.”

Barriere says “that helps” to have at least four other people hear the same thing.

“In terms of admissible evidence, it’s going to come from a number of different sources — it’s going to come from witnesses, it may come from some forensic evidence,” he explains.

“There may be problems — and I’m not going to speculate — but there may be problems with proving the act itself, proving the offence itself,” Barriere adds. “I mean that seems extraordinary in this case but there may be. I don’t know what evidence they have and what they don’t have.

“It may be there’s also problems with the evidence regarding motive, in terms of again, people hearing things differently.”

Barriere says he’s not surprised there may be problems with the evidence.

“In almost everything but the simplest of cases, there are — especially in a case where you have a sort of melee and you’ve got a bunch of people and you’ve got a number of observers,” he says.

“But again, it goes back to my point that the Crown has no problem calling evidence where there’s discrepancies between witnesses’ statements. A lot of people are convicted even where there’s discrepancies in the witnesses’ statements,” Barriere notes.

“The same thing goes for proving motive. Why would evidence that has discrepancies be okay to prove guilt but not be okay to prove motive? You don’t apply a different standard,” he concludes.