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Are alternative measures enough?

Public trial and denunciation lost: lawyer

One of two accused in the alleged gaybashing outside Tinseltown will likely see his case resolved through alternative measures rather than the courts.

Michael Anton Hostland is charged with one count of assault for allegedly calling Thomas Pope a “faggot” while punching him last October. His case is scheduled to be resolved as Xtra goes to press.

Which raises a question for the gay community: is resolving an allegedly hate-motivated offence through alternative measures adequate?

Alternative measures is certainly one of the more favourable results for an accused, defence lawyer Garth Barriere notes. “If there’s evidence against you and you don’t want to take a chance at trial, you’ve got two options: one is to apply for alternative measures. The other one is to plead guilty and take a chance at sentencing.”

With alternative measures, the offence is removed from the criminal process so there is no conviction, provided the accused completes the program measures. “An accused person will in many cases prefer to see a matter not end with a criminal record,” Crown spokesperson Neil MacKenzie acknowledges.

“But it’s important to recognize that from the Crown’s perspective, the approach that’s taken is that a person is only appropriate for alternative measures if they are accepting responsibility for what they have done,” MacKenzie notes.

“It’s not a matter of somebody coming in and saying, ‘Well, I don’t think I really did anything wrong, but yeah, I’ll do some community work if I don’t get a record.’

“You have to come in and say you admit the essential elements of the offence,” MacKenzie says.

Will the accused have to admit they were motivated by hate? MacKenzie says it’s hard to say.

“What the policy sets out is that the offender has to accept responsibility for the act or omission that forms the basis of the alleged offence,” he says. “If there’s a concern that there’s a hate-motivated offence, we’re going to want some sort of acknowledgment, or have the evidence that we feel raises the likelihood of the matter being designated as a hate-motivated offence.”

In the case of hate-motivated offences, Crown must also consider the wishes of  “identifiable victims” when deciding to approve or reject an accused for alternative measures. But the victim’s views are just one factor. To qualify for alternative measures, an offender must also have no history of related offences, and the offence can’t be so serious as to threaten community safety.

What the community loses in alternative measures is the benefit of hearing the reasons why Crown decided one way or another, Barriere points out.

When a matter takes this route, “there really isn’t anything public that takes place,” MacKenzie confirms. “Any report that’s done is just something that’s an internal, confidential document, and the Crown acts on it accordingly.”

So Crown might tell us how much weight they gave the hate motivation “but they probably won’t,” Barriere says.

“Generally, we don’t make any public statements with respect to how we’ve weighed different aspects of a case or different aspects of the evidence,” MacKenzie acknowledges.

Barriere thinks alternative measures can be useful, saying he’s in favour of having a wide variety of measures to deal with criminality, especially in the context of less serious crime, as well as if the accused is remorseful and doesn’t seem to pose an ongoing problem to society.

The disadvantage is there’s no official finding of hate motivation, unlike a judge’s ruling at trial, Barriere says. The community won’t necessarily know whether Crown concluded it was a hate-motivated crime. “And even if they did, it doesn’t have the same cachet or strength as a judge saying that.”