6 min

Gay man undergoes surgery after he was attacked on Davie St

Crown better not drop the ball on alleged 'cookie-cutter hate crime': Deva

A gay Lower Mainland man underwent surgery Sep 29 to repair his jaw that was broken in three places after he was attacked in the early hours of Saturday morning in what Vancouver police are calling “a repulsive crime.”

Jordan Smith, 27 was walking along Davie St in the West End hand in hand with a friend when a group of four young men allegedly approached them, according to police.

The men allegedly screamed obscenities about the couple’s sexual orientation, and police say that’s when Smith was knocked unconscious with a punch to the head.

Police say Smith fell to the ground at the corner of Davie and Hornby Sts. Smith will need to have his jaw wired shut so it can heal.

Police say they want the incident prosecuted as a hate crime because of the obscenities uttered before the attack.

Community activist Jim Deva agrees with this move, saying he has watched gaybashings go largely under-punished for years.

He says Crown prosecutors aren’t doing all they can in the courts to pursue such designations.

“This is a cookie-cutter hate crime,” Deva alleges. “[The] Crown had better not drop the ball on this one.”

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.

The accused, Michael Kandola, 20, is facing an assault charge, but Vancouver police are recommending a charge of aggravated assault.

Kandola appeared in the new Vancouver Downtown Community Court Monday morning. The court, touted as the first of its kind in Canada, and which began hearing cases two weeks ago, has been established to assist those involved in crime as a result of having health and social problems, including alcoholism, drug addiction, mental illness, homelessness and poverty.

But Deva called Kandola’s appearance in community court “an insult.” When told that the accused appeared in community court, parks commissioner and NDP MLA hopeful Spencer Herbert said Attorney General Wally Oppal needs to explain that one.

“That’s insane,” Herbert says. “It’s a definite insult.”

“The Community Court is not for hate crimes,” he says. “It discredits the Community Court. That blows my mind.”

Kandola, who has short, spiky hair and wore an earring sat nervously in community court as he waited Sep 29 to be called before the judge who moved the case to Sep 30 in provincial court.

Kandola appeared even more nervous when he tried to avoid leaving through the front door of the courthouse where a crowd of reporters and cameras from the city’s major media outlets awaited him.

Neither he nor his lawyer, Danny Markovitz, would comment on the charges as the accused ran for a waiting car.

Vancouver Police Department (VPD) spokesperson Insp John McKay says the situation could have been worse had it not been for the intervention of witnesses who stopped and told the attackers they were calling the police.

“There’s no doubt in my mind that this assault was going to continue based on the behavior they all said occurred,” McKay told reporters at a press conference Sep 28.

McKay says the group fled but was found in an alley a block away.

Kandola was arrested and taken into police custody. There have been no other arrests related to the incident.

“For someone to assault someone else based on their culture or sexual preference is just unconscionable,” says McKay.

“It is a repulsive crime when people are attacked because of their colour, religion or sexual preference. We hope anyone caught committing such a crime is reported to us [the police] immediately, so they can be caught, brought before the courts and punished appropriately.”

“It is a crime committed out of ignorance and will never be tolerated,” says Const Tim Fanning.

But while the police have in the past pushed for hate crime designations in the courts, the judicial system has been slow to respond, says Deva.

He says the police are dealing with bashings properly but doubts if the Crown has the ability to do so.

If the Crown fails here, Deva says, it’s time for the community to take to the streets by the thousands to say it’s had enough with Crown inaction.

Herbert, who was also called a “fag” from a car on Saturday as he walked hand in hand with his partner through the West End, says the hate crime legislation has to be used — and used properly.

He too says the community needs to take action to ensure its rights are not trampled on in this case.

“We as a community need to unite,” he says. “It takes a long time to fight for our rights. It takes only minutes to take them away.”

Further, Herbert added, education about tolerance needs to start in schools. Concepts such as homophobia are explored in BC’s new Social Justice 12 elective course, but it is not available in all schools.

In fact, 90 students signed up to take the course at WJ Mouat Secondary in Abbotsford, but the school district cancelled the program.

This latest attack follows a series of incidents over the spring and summer months.

The owner of Flygirl Productions, Leigh Cousins, alleges a man shouted homophobic slurs and then punched her jaw as she was putting up event flyers in the breezeway leading to Little Sister’s bookstore Apr 28.

But Cousins told Xtra West in June that police were not pursuing an investigation into the case. She said police told her witnesses’ statements indicated the incident involved “mutual banter” between her and her alleged assailant, so they weren’t recommending charges.

On Aug 2, Khalid Alzghoul, a 31-year-old man, allegedly attacked several people with a hammer in the Davie Village, beginning at the Majestic at the height of this year’s Pride celebrations. He is charged with 17 offences including assault causing bodily harm.

But Vancouver police told Xtra West then that the hammer attacks were not motivated by homophobia and that accused Khalid Alzghoul has a history of mental illness.

Then, on Aug 20, the PumpJack Pub was cleared and closed for a few hours after an unidentified person left a voice message threatening to bomb the popular gay establishment on Davie St.

Co-owner Vince Marino says between Aug 17 and 20 the pub received “probably eight to 10 calls,” all anti-gay, and apparently from the same individual.

Crown prosecutors did not ask for a hate crime designation in the case of a youth who pled guilty to manslaughter in the 2001 beating death of Aaron Webster in Stanley Park.

Youth Justice Court judge Valmond Romilly, however, added the designation himself.

In the case of another youth involved in the case, youth court judge Jodie Werier cited a youth worker’s report, that noted the second youth “denied that his actions were motivated by hate towards homosexuals.”

Werier did, however, designate the crime a “serious violent offence.”

Neither did the Crown seek a hate crime designation when a third person, Ryan Cran, was convicted in BC Supreme Court. While the Crown had not sought a hate crime designation for Cran on his manslaughter conviction, BC Supreme Court Justice Mary Humphries did not follow Romilly’s lead and add such a designation of her “own volition.”

“I am aware that the death of Aaron Webster has had a significant effect on the gay community,” she said, ” however there was no evidence before the court of Mr Webster’s sexual orientation.”

She repeatedly asked lawyers if there was anything else she needed to know prior to sentencing.

A fourth man, Danny Rao, was acquitted in Webster’s death.

The Crown also did not seek a hate crime designation at the Jul 14, 2008 sentencing of a Squamish man convicted of assaulting a gay man during Pride weekend 2005 in Davie Village.

The convicted man, Ravinder Toor, and co-accused Randeep Cheema were charged with 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.

Toor received a nine-month, non-jail sentence, to be followed by 12 months of probation. He was sentenced to serve the first three months under house arrest at this parents’ Squamish home.

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. 

And, in 2005, a man who killed a prostitute after flying into a rage when he found out she had once been a man was sentenced to four more years in jail on top of two years already served (counted double at sentencing) while awaiting trial.

Jatin Patel pleaded guilty to manslaughter in the slaying of Shelby Tracey Tom, a 40-year-old transgendered prostitute who was found dead in a shopping cart in a lane in the Lower Capilano area of North Vancouver on May 31, 2003.