Crown counsel is unlikely to seek a hate crime designation for Ravinder Toor, who is awaiting sentencing following his February conviction for assaulting a gay man in 2005.
“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.
“So we want to make sure we’ve looked at it as carefully as possible and make sure we put the full thing before the court, and that’s what we believe we’ve done.
“But given the judge’s ruling, obviously we haven’t put enough before the court, or there wasn’t enough evidence for the judge to conclude that Mr Toor committed this assault because of hate motivation,” Cutler says.
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.
What she did doubt was that Toor’s actions were motivated by bias or hatred against gays.
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.
Young testified at trial that he was sitting on a bench outside the gas station’s convenience store when a taxi pulled up. As one of the two passengers — later identified as Toor — exited the taxi’s right rear, Young says he heard him utter, “We know your kind, or we hate your kind, or something to that effect.”
Young testified that he lost consciousness in the beating that followed — a beating that left him with a deep cut to his upper lip, swelling to his nose, internal bleeding and a badly fractured lower right leg for which he has undergone multiple surgeries.
Giardini found that Toor punched Young with a closed fist to the face “at least once but possibly twice” and kicked him. But she said she could not find beyond a reasonable doubt that Toor said anything prior to the fight.
She did, however, find that at least one of the accused yelled a homophobic slur after the fight.
“I find that at least one of the men yelled out [the] words “fucking faggot” as they were walking away in the lane,” she writes in her decision. “This was after the fight,” she points out, adding there is insufficient reliable evidence to determine which of the two men yelled these words.
At trial Cheema testified that it wasn’t him.
Still, Cutler says that given the judge’s comments, Toor can’t be penalized for a statement that may have been made by someone else.
“Keep in mind, our onus is beyond a reasonable doubt,” says Cutler, “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 argues. “That’s where our difficulty is right now, trying to figure out if there’s some way we can establish it.”
The case suggests it was a hate crime, he acknowledges, but the Crown can’t directly tie Toor to any evidence of bias.
“It’s possible and likely they both were involved in a hate crime and even if Mr Toor didn’t say it, he certainly felt those sentiments — that’s possible,” Cutler says. “But it’s also possible that the co-accused was doing this as a hate crime and Mr Toor was doing it because he didn’t like the guy.
“I suppose it’s a way of saying Mr Toor is not going to be found guilty by association,” he continues. “Let’s assume it was the other co-accused who said it. Yes, Mr Toor is hanging out with this guy but it doesn’t mean Mr Toor shares the same sentiments.”
Without new evidence or some evidence the judge hasn’t heard yet, Cutler says the Crown is “bound” by the judge’s finding that the current evidence is insufficient to prove Toor was motivated by hate.
“Given the judge’s comments, at this point it’s unlikely that we’re going to be able to make that submission that it’s a hate crime,” he says. “But having said that, we’re still reviewing it to see if there’s any further evidence or something else we can put before the court to make that submission.”
Jack Herman of West Enders Against Violence Everywhere (WEAVE) isn’t satisfied. He thinks the Crown should push for a hate crime designation.
The use of the words “fucking faggot” should be enough to constitute hate motivation, Herman believes.
“I think that everybody agrees that fucking faggot was used after the fight. Everybody admits that. I would say that constitutes hate motivation, and I would urge Crown to go for the designation,” he says.
“It’s not like they were acting independently of each other. You’ve got an accused here, they found him guilty — there was an assault, he’s guilty of that, walks away, one of them is saying fucking faggot… I think it’s clearly hate-motivated, and I would urge Crown to certainly pursue that,” Herman says.
But Murray Bilida, who organized the protest march following Aaron Webster’s brutal gaybashing in 2001, feels Herman is missing the point.
“There was no evidence presented as to which person uttered anything,” he says, arguing that makes the homophobic statement a moot point.
“Why as a community are we chasing this issue when the evidence doesn’t support our allegation? So we’re going to whip up people that there was misjustice here, and in fact that justice was clear.”
Bilida acknowledges that “one of them said it” and that what happened to Young was “a horrible, horrible crime.” But the evidence isn’t there to support a hate crime designation, he says.
“I’m sure the Crown would be itching to seek this designation, especially given what happened in the Aaron Webster case. They’re a little sensitive, right? But if the case isn’t strong enough then why should we suggest they overlook the evidence and ask for a designation anyways?”
Little Sister’s co-owner Jim Deva agrees, saying it’s a point of law.
“It’s unfortunate they couldn’t identify which [person] said it,” he says.
Deva also questions whether yelling “fucking faggot” is enough to demonstrate hateful intent to harm someone. “If [it’s] kill the fag, that definitely has the intent of harm,” he reflects.
Regardless, he says, if the judge has “pointed out that it’s not clear who uttered it, it ain’t going nowhere.”
But Herman is adamant, even as he acknowledges what he calls the “restrictions” upon the judge.
“The fact of the matter is that it [‘fucking faggot’] was said, and as far as I’m concerned, it’s evidence of hate,” he says.
A hearing to fix a date for Toor’s sentencing will take place May 22. He will likely be sentenced in June or July.
Toor is currently in custody after violating a no contact order in another matter in which he is accused of assaulting a woman on Jan 21.