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Alzghoul’s homophobia at arrest not enough: judge

No hate crime, judge rules, citing lack of anti-gay comments during attack

Xtra West has obtained  the sentencing report from the provincial court judge who ruled he was “not satisfied beyond a reasonable doubt” that the man convicted of multiple assaults with a hammer on Pride 2008 was motivated by hate, despite police evidence that the man made homophobic statements at the time of his arrest.

Khalid Alzghoul was charged with 25 offenses in August 2008 after he left the Tutti Convenience Store on Davie St and began attacking several people with a hammer at the adjacent Majestic’s Pride party. He then fled the Majestic, attacked two women sitting on the patio at nearby Characters restaurant, and fled again. He was eventually contained by the husband of one of the women near Thurlow and Davie Sts, where police found them struggling.

When police arrested Alzghoul he “was very agitated, ranting and breathing heavily, and said, amongst other things, ‘I know Jesus wasn’t gay and it’s wrong to let the gays have their parade on a Sunday,’” the court heard from one of the officers on the scene.

Alzghoul also told police that he “had been sent to punish them [gays], or was punishing them, and that this was judgment day,” Const Bayne testified at trial.

To another arresting officer, Alzghoul asked: “Are you a lesbian?” and “Why do you let gays celebrate?” the court heard.

None of this evidence was enough to satisfy Judge T D’Arcy McGee.

McGee acknowledged that “the offences occurred on a day of celebration for the gay community and that on his apprehension by the police, the accused made anti-gay statements.”

But he was not “satisfied beyond a reasonable doubt that these offences were motivated by hate for members of the gay community.”

The fact that Alzghoul “made no specific reference of any sort concerning the gay community at the time of committing the offences” must also be taken into account, McGee ruled.

Anti-gay comments were only noted at the time of Alzghoul’s arrest — not during the hammer attack itself.

Defense lawyer Garth Barriere says the fact that Alzghoul did not make anti-gay remarks when committing the offences is relevant but insufficient reason to find against hate being a motivating factor in this case.

“In my opinion, the comments after the assaults provide sufficient evidence to make the aggravating finding,” Barriere says.

“When you are inferring intent or motive, you can look at what were the circumstances that would have been known to the offender,” he explains.

Crown counsel Daniel Porte, who prosecuted the case, also told Xtra West that the context of the attacks was an important consideration in his decision to seek a hate crime designation in the case.

“It’s an attack on an important weekend — it’s the gay Pride parade,” Porte says.

And the hammer attack began at the Majestic’s Pride party. “It’s got banners up. It’s quite clear, I think, they’re celebrating Pride at that location,” Porte says. “We have to put that into context. We have the locations where things took place.”

The judge was not convinced.

McGee found “there was nothing by way of dress, demeanour or the like which would suggest the people assaulted were of any specific sexual orientation.

“While the Majestic was described as being friendly and accommodating to the gay community and decorated with flags of that culture, it welcomed all patrons, as did Characters,” McGee ruled.

But Alzghoul’s comments at the time of his arrest suggest he believed his victims were gay, Barriere counters.

“I don’t think the judge is saying that the victims have to actually be gay,” Barriere adds. “He just wasn’t prepared to make the inference that I would have from the offender’s statements.”

In his sentencing decision, McGee also refers to a presentence report in which Alzghoul claims “he did not know the day was a gay festival” and that he “has no ill feelings towards homosexual people despite the comments he made at the time of his arrest.”

McGee also refers to a psychologist’s report in which Alzghoul expresses remorse for what he has done, says he believes in tolerance and says he has “worked and lived with homosexual people in the past with no difficulty.”

“While these statements are not proof of the facts stated, they are helpful in attempting to determine what motivated the accused to commit these offenses,” McGee stated.

“Putting myself in the shoes of the judge, I might have put more weight on the officers’ evidence of what statements were made by the accused and what that said about the accused’s intent,” Barriere says.

The judge in this case seems to have put more weight on the presentence report — which he is entitled to do, Barriere notes.

But McGee never really addresses the inconsistency in the statements Alzghoul made at the time of his arrest and the statements he made afterwards in the presentencing reports, Barriere points out.

At the end of the day, Barriere says, everybody brings their own sense of judgment to these kinds of cases.

“[The judge] says, ‘Look, these assaults seemed to come out of nowhere, they’re out of character, he doesn’t say anything at the time of the assaults, it’s only after the assaults that he makes some comments.’ And logically you can say, ‘I have a doubt about what his intent was at the time, what his motive was at the time.’

“It cannot be forgotten that the onus of beyond a reasonable doubt is a high one, and judges are legally required not to make the aggravating finding if they have any doubt, which this judge did,” Barriere concludes.

Alzghoul was sentenced to two and half years in jail Sep 2 but will serve only four months of that sentence after receiving credit for time already served while awaiting trial.

The Crown had sought a four to five year prison sentence — and a hate crime designation.