Vancouver
3 min

Judge shines

'We have a good precedent now,' Crown says

“It’s done,” my colleague Jeremy whispers to me with a smile. 
 
I know.
 
I am grinning and choked up all at once. 
 
It’s Monday, April 26. Michael Kandola’s sentencing hearing.
 
Kandola’s lawyer has just attempted to convince Justice Joel Groves that though Kandola made homophobic remarks before and after he threw the punch that levelled Jordan Smith, those remarks don’t count because they weren’t made in the exact moment his fist collided with Smith’s jaw.
 
“How can I go through the mental gymnastics of ignoring words said directly before and after the action?” the judge asks. 
 
And in that moment I sense victory.
 
It’s been seven years since a Crown counsel has sought, and a judge granted, a hate crime designation in a gaybashing case in BC.
 
Seven long years.
 
“I am satisfied that the Crown has proven that hatred of the victim’s sexual orientation was at play in this offence,” Groves ruled on April 30, dismissing the suggestion that anti-gay slurs uttered before and after an act can be separated from the act itself. 
 
It’s a far cry from Judge T D’Arcy McGee’s decision just a few months ago in the hammer basher’s case.
 
McGee rejected the Crown’s request for a hate crime designation — despite evidence that Khalid Alzghoul told police at the time of his arrest that he’d been sent to punish gays, that Jesus wasn’t gay and that it’s “wrong to let the gays have their parade on a Sunday.”
 
The fact that Alzghoul “made no specific reference of any sort concerning the gay community at the time of committing the offences” must be taken into account, McGee ruled.
 
Can’t blame Kandola’s lawyer for trying the same schtick. It worked in September. But it didn’t wash here.
 
“In Canada, people are free to live their lives as they choose,” Groves ruled.
 
“Those who wish to act like he [Kandola] did must know that there are real consequences to their behaviour.”
 
Groves rejected the defence’s suggestion that Smith’s decision to confront his tormentors somehow constituted provocation.
 
“The circumstances are that Mr Smith arrived at a corner and was assaulted; he was bullied,” Groves ruled. “There is no evidence here that anything Mr Smith said or did constituted provocation.”
 
Remember the days when a gay man’s glance was considered sufficient provocation to justify his attacker’s wrath?
 
Fifteen years ago, Gary Gilroy got just five years in jail for butchering a gay man beyond recognition. Gilroy claimed he snapped after David Gaspard made “unwanted sexual advances.” The Crown and the judge bought it.
 
The fact that Kandola’s lawyer trotted out a new version of the provocation defence here is insulting. The fact that it got thrown back in his face is a victory. 
 
“I am persuaded that a significant period of incarceration is necessary for this accused,” Groves ruled, emphasizing the importance of deterring future gaybashers.
 
Next to me, tears slip silently down Charles McKay’s face. McKay was holding hands with Smith the night Kandola and his buddies attacked them on Davie St. 
 
“Wow,” McKay says softly as the judge bans Kandola from the gay village for the duration of his probation.
 
Wow indeed.
 
Or should I say: finally.
 
Finally, a Crown who more than stepped up for our community. A Crown who went out of her way to give the judge the reason and the means to rule this was a hate crime. Dasein Nearing gets my vote for Crown of the year.
 
And Groves gets my vote for judge of the year.
 
“I’m really pleased,” Nearing tells me afterwards. “We have a good precedent now.”
 
And, sadly, another trial on which to test it. Ritchie Dowrey’s alleged gaybasher goes to court on July 21.
 
“It’s a good and sad day,” Smith tells me after Kandola’s sentencing.
 
Good because justice was done. “I thought something good was going to come of it, but I didn’t think it was going to be this good,” Smith says.
 
Sad because, underlying this victory in court, is the need to be there in the first place.
 
I ask Smith if today’s decision will make it easier for him to hold his boyfriend’s hand in public again. “It’s a first step,” he says. “I hope so.
 
“I hope so.”