For the third time in BC legal history, the Crown has asked a judge to designate an alleged gaybashing as a hate crime.
Prosecutor Dasein Nearing made the application April 26 during the sentencing hearing for Michael Kandola, 22.
“This event was extremely serious and had a devastating effect on the victim and his partner, and a chilling effect on the gay and lesbian community of Vancouver,” she told the court.
Nearing asked BC Supreme Court Justice Joel Groves to sentence Kandola to 8-12 months in jail on top of time already served.
Outside court, Jordan Smith welcomed the hate crime application. “I think a strong message has to be sent, and it’s time this law was used,” he said.
Kandola pleaded guilty on March 31 to assault causing bodily harm in the September 27, 2008 attack on Smith at the corner of Davie and Hornby streets in Vancouver.
Smith and his partner Charles McKay were walking up Davie St holding hands when they heard five Indo-Canadian men yelling “Faggots” and “What the fuck is this?” Nearing told the court.
She said Smith let go of McKay’s hand and turned back to ask the men what they meant.
Reading from Smith’s testimony from the preliminary hearing in provincial court, Nearing said Smith then found himself partially surrounded by the men.
A videotape of the incident taken from the security camera of the 7-Eleven store at the intersection, played in court, shows Kandola threw the punch that knocked Smith unconscious and broke his jaw, requiring it to be wired shut for several weeks to heal.
Referring to the video, Nearing said, “Mr Kandola can be seen coming around the side of the group pulling back his arm.”
“In colloquial terms, (Kandola) sucker-punched the victim and he didn’t even see him.”
The incident did not stop with Smith on the ground by the 7-Eleven wall, though.
“Mr Kandola can be seen standing above the victim. He is gesturing aggressively with his arms and his legs,” Nearing said.
She referred to McKay’s earlier testimony that Kandola screamed “fucking homo” and “faggot” repeatedly over Smith’s prone body.
Kandola then turned on McKay and screamed, “Do you have a problem?” McKay testified at the preliminary inquiry. “He was very, very angry,” McKay said.
Nearing said another witness told police that Kandola was standing over Smith “screaming ‘faggot’ and threatening to do him in.”
As well, she said, a cab driver told Kandola he was filming the incident and that police were coming.
The cabbie said Kandola’s response was “Oh yeah, fag lover. Come over here.”
As the facts of the case were read in court, Kandola sat quietly, head down.
Smith sat about five metres behind him, next to McKay, clenching and unclenching his right fist. At one point, Kandola made eye contact with the couple.
Nearing told Groves that night was the first time Smith had held his partner’s hand in public.
“The accused took grave exception to that… and assaulted him,” she said.
“We were minding our own business walking down the street,” Smith testified at the preliminary inquiry. “We weren’t bothering anybody.”
Not so, said Kandola’s lawyer, Danny Markovitz.
He acknowledged his client hit Smith, but claimed it wasn’t a gaybashing.
Homophobia did not motivate this incident, Markovitz told the court. Smith’s “audacity” in confronting the people screaming obscenities at him provoked the assault, he said.
Kandola and his group were “hanging around with nothing to do,” Markovitz told the court. Had a group of turban-wearing men gone by and Kandola and his friends called them “rag-heads” and been confronted for it, they would have equally struck those men.
“What caused him to strike is that that person had the audacity to confront them,” Markovitz argued.
“But it’s not a crime motivated by hate.”
Nearing said gaybashing cases invariably have a common factor.
“The anti-homosexual slurs are always the same,” she told Groves. “It’s usually the word ‘faggot.'”
Further, she said, gaybashings often happen in gay-friendly neighbourhoods such as Church St in Toronto or Davie St in Vancouver.
And, she continued, there is often a lack of provocation and then extreme or disproportionate violence.
She said all those factors are present in Kandola’s case.
As such, it merits a hate crime designation, she argued.
Markovitz characterized the case as a confrontation with Smith and the subsequent assault as “a senseless, juvenile, drunken, idiotic moment.”
“Does he regret it? Of course he does,” Markovitz said.
He said Kandola and his family have been embarrassed and ashamed by the incident.
Nearing said the attack has left Smith with emotional scars. “He continues to suffer some psychological and emotional impact.”
“It doesn’t make me feel that comfortable to show public displays of affection,” Smith said outside court.
While Groves set sentencing for April 30, some of his comments made it clear he wasn’t buying all of Markovitz’s arguments.
When Markovitz argued it wasn’t a hate crime because there was no further violence after Smith fell, Groves interjected.
“Couldn’t that be explained by the fact he was lying on the ground?” Groves asked.
Markovitz also suggested the actions and the words in the situation should not be taken together.
“Words and actions should be seen as mutually exclusive,” Markovitz said. “It was not as if the words were coupled with the striking at that moment.”
Groves again interjected.
“There are words here said just before and after. How can I go through the mental gymnastics of ignoring the words said immediately before and immediately after?” he asked Markovitz.
Nearing stressed that Kandola has shown little remorse for his actions.
Groves asked Kandola if he had anything he wanted to say before court was adjourned.
“I apologize,” Kandola said, without turning to face Smith. “I will write a letter if he wants that done.”
Smith said he doubted the sincerity of Kandola’s words.
“I think it’s a joke, really,” he said. “It was a hate crime for sure.”