2 min

Is a pass provocation for murder?

Politicians fight over homosexual panic defence

Barry Walters discovered the blood on Sep 29, 1994.

“There’s nothing I don’t remember,” says Walters, who was a Vancouver building manager at the time. “Even the words people are saying. It’s like a movie, you can put your video in the machine. Everything that was there the day before when you watch the same movie was still there.”

With little prompting Walters assembles every detail, from the brutal slaying of one of his best friends to the subsequent legal circus that outraged a community.

It was the 3am fire alarm that first alerted him – triggered by running water leaking from apartment 204 into the ceiling below.

The downstairs tenant, Walters recalls, was hysterical and could speak only limited English, telling him that “rose water” was coming through her ceiling.

That made no sense. Walters visited the flooding apartment belonging to his friend. He opened the door and Gary Gilroy walked around the corner of the suite, casual as whatever, looked at Walters and said, “He tried to rape me.”

“I don’t realize I’m standing in water and blood,” says Walters.

Blood was all over the bathroom. Later he would have to hire carpet cleaners to get blood out of the hallway; a five-foot circle of floor had to be cut out of the apartment because blood had soaked through the wood.

Gilroy had stabbed David Gaspard 65 times – two-thirds of the wounds inflicted after his target had died. The killer used six different knives, butchering the body beyond recognition.

Gilroy’s lawyers invoked the “homosexual panic” defence, claiming the killer was provoked into a psychotic rage by an unwanted sexual advance.

The Crown did not disprove this theory, eventually accepting a manslaughter plea. The Crown asked for – and received – a five year sentence that even the sentencing judge said was too short.

Gilroy is no longer in prison. The scant information Corrections Canada will make public indicates his sentence expired in July.

But Gilroy should be in jail for the rest of his life, according to Walters.

He asks why a panicked Gilroy would go from the bathroom, where Gaspard supposedly came on to him, walk 12 feet to the kitchen, grab a knife and return to stab the victim? Why would a panicked man move the body from the bathroom to the bedroom, where Gaspard’s corpse was found? And why, Walters asked, would a panicked man still be in the apartment when the building manager arrived more than 20 minutes after the fact?

Says Vancouverite Marty Walsh: “I was still standing in the courtroom when the sentence was handed down, and I was shocked in disbelief.

“The whole room was too, a massive reaction to something that happened, that shouldn’t have been. Five years? I can honestly say it changed my opinion on capital punishment.”

The homosexual panic defence is still available for anybody charged with killing a gay man. Gilroy was not the first Vancouver killer to use it successfully, and in the last five years the federal government has come no closer to outlawing this and other provocation defences to murder.

Vancouver-Centre Liberal MP Hedy Fry has continually asserted the federal government is studying provocation defences.

Fry maintains that Ottawa cannot outlaw homosexual panic without making sure other defences, like battered wife syndrome, remain untouched.

“How do you make sure people driven to the wall have a bona fide defence?” asks Fry.

Critics reply that self-defence and killing someone because they’ve made a pass are two different things.