The Crown did not ask for a hate crime designation at the Jul 14 sentencing of a Squamish man convicted of assaulting a gay man during Pride weekend 2005 in Davie Village.
Toor and co-accused Randeep Cheema were accused of assault causing bodily harm in connection with the Jul 30, 2005 beating of Russell Young outside the Esso gas station on the corner of Davie and Burrard Sts.
Cheema was subsequently acquitted Feb 12, after judge Maria Giardini ruled she had reasonable doubt that he participated in the fight with Young. But Giardini said she had no doubt that Toor fought with Young outside the gas station.
Crown counsel Alison DeSmet did not bring up the possibility of a hate crime designation at sentencing, and only addressed the issue after Toor’s lawyer, Chandra Corriveau, brought it up.
Corriveau raised the issue in a bid to remind the judge that, in her reasons for convicting Toor, she ruled there was “insufficient reliable evidence to establish beyond a reasonable doubt that anti-gay comments were made before the fight.”
In that ruling, however, Giardini did say she found that “at least one of the men yelled out the words ‘fucking faggot'” as they were walking away from the incident.
“This was after the fight,” the judge pointed out, adding “there is not sufficient reliable evidence to determine which of two men yelled these words after the fight.”
According to the Criminal Code of Canada, a person convicted of a crime should get a stiffer sentence if there’s evidence their actions were motivated by “bias, prejudice or hate” based on sexual orientation or other grounds.
“We’re obviously mindful of it because everything we’ve seen, it suggests to us it was a hate crime,” Crown spokesperson Roger Cutler told Xtra West May 8 when asked if the Crown would seek a hate crime designation during sentencing.
“Keep in mind, our onus is beyond a reasonable doubt,” Cutler said, “so we have to satisfy the court beyond a reasonable doubt that Mr Toor committed this offence because it was a hate crime and he wanted to hurt [or] punish someone who’s a homosexual.
“We can’t prove that,” he argued. “That’s where our difficulty is right now, trying to figure out if there’s some way we can establish it.”
After Corriveau raised the issue at sentencing, Giardini asked DeSmet if she wanted to address it as well. DeSmet said she would follow the judge’s lead and therefore not seek the designation. She specifically pointed to Giardini’s stated inability to definitively pin the “fucking faggot” comment on Toor.
Instead, DeSmet asked the judge to simply sentence Toor to six months in jail.
DeSmet based her request for incarceration on Toor’s denial that he committed any “deliberate assault” on Young, his lack of remorse, his prior criminal record, and his alleged breach of bail conditions in connection with another alleged assault in January — this time involving a longtime girlfriend. That January assault charge was later stayed.
Asked outside the courtroom why she didn’t go ahead and ask for a hate crime designation in spite of the judge’s ruling, DeSmet said, “I think I said what I wanted to say in court.”
At the sentencing hearing, DeSmet also referred to a victim impact statement Young made which she says outlines the “significant impact” the July 2005 incident has had on him. In the statement, Young says he is reluctant to meet new people or even to go out as much as he used to, and avoids making eye contact with people for fear of a violent reaction.
Corriveau asked Giardini to consider two sentencing alternatives: a suspended sentence or a conditional sentence to be served in the community under appropriate terms.
In the end, Giardini handed Toor a nine-month conditional sentence, to be followed by 12 months of probation.
Toor will now be under strict house arrest at his parents’ Squamish home for the next three months, where he must remain on the premises except when required to appear in court, attend counselling sessions to be specified by the sentencing supervisor, perform community service tasks totalling 40 hours, or attend medical emergencies involving himself or members of his immediate family. Toor must be able to demonstrate to the court that he is following the house arrest conditions.
After the first three months of his conditional sentence, Toor will be allowed to leave the house but must return by a 10 pm curfew, not to leave again until 6 am daily.
No curfew will be imposed in the final three months of his nine-month sentence, but Giardini says Toor will have to wear an electronic monitoring bracelet and maintain a landline that can be linked to the device.
Giardini also acceded to a request from Crown that Toor not be allowed to own firearms, or carry or use any weapons or imitations of weapons. He is also not allowed to use knives except when eating or using knife-like instruments that are work-related, and which must remain at his workplace.
Giardini also ordered to Toor to make concerted efforts to find employment.
Finally, she warned Toor that if he breached the conditions set out in his sentence, she would likely rule that he serve the remaining time in jail.