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Bar association panel addresses hate-crime prosecution

'It is nice when Crown can give us the ability to speak out loud on a particular subject': judge

Jordan Smith, whose jaw was broken in a 2008 gaybashing, says he has more faith in the justice system now he's been through it but calls for more education so the queer community can feel more confident about reporting hate-motivated assaults. Credit: David Ellingsen photo

A gay man whose jaw was broken in a 2008 gaybashing says he has more faith in the justice system now that he’s been through it and understands it.

But, says Jordan Smith, more public education is needed so the queer community moves away from its distrust of the system. That kind of outreach could lead to an increase in the reporting of hate-motivated assaults on community members, he adds.

Smith joined three lawyers, a judge, the managing editor of Xtra Vancouver and a detective constable of the Vancouver Police Department’s Hate Crimes Unit on Sept 27 to discuss how the prosecution of hate-motivated crimes has changed in the past few years in BC.

Xtra’s managing editor, Robin Perelle, hailed the conviction of Michael Kandola, who assaulted Smith, and that of Shawn Woodward, for the 2009 Fountainhead Pub assault on Ritchie Dowrey, as victories for the community. The justice system now appears to be taking the community’s concerns seriously, Perelle said.

Smith was walking hand in hand up Davie St on Sept 27, 2008, with his boyfriend, Charles McKay, when several men confronted them. Kandola sucker-punched Smith and was subsequently convicted of assault causing bodily harm. Prior to the attack, Smith and McKay testified that they heard someone yelling “faggots” and “what the fuck’s this?”

When Smith collapsed after the punch, all caught on video, McKay said Kandola stood over the prone man, screaming “fucking homo” and “faggot.” An independent witness corroborated the testimony. Smith’s jaw was broken and had to be wired shut.

At sentencing in April 2010, Crown prosecutor Dasein Nearing presented BC Supreme Court Justice Joel Groves with a test for determining if Kandola’s assault on Smith was hate motivated under the provisions laid out in Section 718 of the Criminal Code.

Groves agreed with the propositions that homophobic language was used before, during and after the assault; that the attack occurred in a gay area; there was lack of provocation; extreme or disproportionate violence was used; there was no previous interaction between the parties; and the absence of an alternative explanation or motivation.

The test was again brought up in Woodward’s provincial court trial. He was accused of sucker-punching Dowrey, who remained in a coma for weeks, sustained brain damage and will require care possibly for the rest of his life.

Outside the pub, witnesses and police heard Woodward yelling, “He’s a faggot. He deserved it. The faggot touched me. He deserved it.”

Judge Jocelyn Palmer agreed that Crown had met the test in that case as well. Her sentence of six years was upheld on appeal. “I see no other possible explanation for Mr Woodward’s behaviour than virulent homophobia,” Palmer ruled in passing sentence Nov 8, 2010.

Perelle said she was stunned that the judge agreed hate was an aggravating factor in the Kandola case. “I was stunned again when, just seven months later, it happened again at the Fountainhead gaybashing trial,” she said. “Crown counsel Jacinta Lawton not only sought a hate-crime designation but in no uncertain terms dismissed defence counsel’s attempt to justify his client’s attack with the old crotch grab/sexual advances story.”

Between those two cases, BC’s Criminal Justice Branch modified its policy book. If evidence exists that a crime may be motivated by hatred, that evidence must be led at trial, according to a BC provincial policy that came into effect Oct 12, 2010.

With two more alleged gaybashing cases before Vancouver’s courts, it remains to be seen if the use of 718.2 now being welcomed by a once-doubtful gay community will continue to be used, Perelle observed. Two successful prosecutions do not a consistently responsive and responsible justice system make, but they are a good sign, she said. “I would say there is “now cause for cautious optimism — finally.”

Lawton noted during the discussion that the Woodward case “seemed like the only time I got a bit of justice in my job.” She said police need education on what is important for charge approval. “If someone is yelling, “you faggot, you fucking faggot,” you need to write that down,” she said. “This is a possible hate crime.”

Lawton said such cases move beyond proving intent and into proving motivation beyond a reasonable doubt. “Now we can go in with a Court of Appeal authority,” she added.

However, BC Provincial Court Judge Gary Cohen said judges have liberty to accept or reject the evidence before them. “It is nice when Crown can give us the ability to speak out loud on a particular subject,” he said. “The malicious horrible things that people say, those are the things that affect sentencing, and we will consider them.”

The Sept 27 panel was organized by lawyer Preston Parsons, a member of the Canadian Bar Association’s Sexual Orientation and Gender Conference.

He said he proposed the event as “a way to give back to the community.”