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Lawyer to Crown: ‘You have two jobs to do’

Prove the offence and prove the hate motivation

A Vancouver criminal lawyer says it’s time BC’s attorney general reminded his prosecutors that their job at trial includes presenting evidence of aggravating factors like bias, prejudice and hate motivation in gaybashing cases.

“The attorney general under our Crown Counsel Act has the power in British Columbia to issue a directive, and it’s a power that probably, in my opinion, [is] not used enough,” says Garth Barriere, a local defence lawyer.

BC’s Crown counsel have only sought a hate crime designation once in the last five gaybashing trials heard in Vancouver since 2001 — despite the provision in Section 718 of Canada’s Criminal Code that says hate-motivated crimes ought to be punished more severely.

Attorney General Wally Oppal says he doesn’t need to instruct his Crown counsel to seek hate crime designations more assertively.

“They already do that,” he assured Xtra West Mar 2, adding that he doesn’t “generally interfere” with specific cases in order to respect the independence of the criminal justice branch.

But it’s already Crown policy to pursue aggravating factors where they exist, Oppal says.

“If there’s any aggravating factor, we will vigorously press for higher penalties,” he insists. “If anything our prosecutors are accused of being too vigorous.”

The one gaybashing case in which BC Crown sought a hate crime designation involved a group of young men outside a local dyke dance explicitly declaring their hatred for fags and dykes and their desire to bash them within earshot of about a dozen witnesses. The men then punched a woman in the face, swarmed her, and were kicking her repeatedly in the head when police arrived.

Crown counsel, who bear the onus of proving aggravating factors beyond a reasonable doubt at trial, did not present evidence of hate motivation in any of the manslaughter trials surrounding Aaron Webster’s brutal slaying in Stanley Park in 2001.

Nor have they sought hate crime designations in any gaybashing cases prior to 2001, according to Doug Janoff, author of Pink Blood: Homophobic Violence in Canada.

“Parliament can write whatever it wants in the Criminal Code,” Barriere notes, “but if it’s not put into practice effectively at the ground level, it doesn’t mean very much.”

Barriere says he’s surprised by Crown’s apparent reluctance to try to prove an offence has been motivated by hate, bias, or prejudice.

Crown counsel often justify not seeking the designation based on their belief that they wouldn’t be able to prove that hate was a motivating factor. Barriere says he finds this position “interesting.”

“Just from my anecdotal experience, there’s been a number of cases where the allegation of hate or bias has been raised, say, by the victim or by the community,” Barriere says, “and yet the Crown doesn’t even try to prove that aggravating factor, doesn’t invite the judge to make the inference.

“I’ve often wondered about that,” he says. “They have no problem trying to get judges or juries to make inferences on the basic elements of the offence, like the intent, for instance. But when it comes to trying to prove a motive, they seem more reluctant and I don’t understand why.”

Barriere cites the Webster case. He believes there was enough evidence for Crown to argue that the attack was motivated by hate towards Webster as a gay man. “But they didn’t even try,” Barriere points out.

Det Rob Faoro, the lead investigator in the Webster case, says he and Crown counsel Greg Weber couldn’t find any evidence to prove that Ryan Cran and the two youths convicted in the case “went out seeking homosexuals or gays.”

“They would go down and drink [in Stanley Park] and they had hockey sticks and golf clubs and they would chase people around and they always talked about peeping toms or guys in the park,” Faoro says, but “nowhere along the way did we see it as a hate crime.”

“We had the Hate Crime Unit shadowing us to make sure that we knew all the new legislation and all that, and Greg Weber was very well aware of that. It was front and centre in the press at that time, so if it had been there, we would have used it for sure, guaranteed,” Faoro insists.

“I wish it was a hate crime myself, but we couldn’t bring the evidence before the court,” he adds.

Barriere is not convinced.

“When you have a group of guys who are out to assault running across a man walking through the park naked with cowboy boots on, is it that big a stretch that they believed him to be a gay man and they attacked him because of his — not only his sexuality but the way he was expressing his sexual orientation?” Barriere asks. “The kind of overt nakedness and all of that. Is it really that difficult an inference to draw?”

When it comes to hate crime designations, Crown seems to want “the smoking gun” — specifically a verbal statement of hate, Barriere says.

But the statement of hate may lie in the action itself, he says, and in the circumstances surrounding the incident.

The “nature of the victim” can lead to an understanding of a criminal offence, he notes. “In some circumstances you could work backwards from the identity of the person: what they were doing that evening, where they were coming from, what part of town they were in — all those kinds of factors — and from there you can build up a circumstantial case that somebody knew that they were gay, or thought they were.”

Barriere suggests that Section 718’s introduction into the Criminal Code has proven to be a conceptual challenge for Crown.

Harsher penalties for hate motivation have meant that Crown counsel now have to show proof of aggravating factors in addition to proving guilt for the original offence.

“It’s almost like a paradigm shift,” Barriere says. “I think that often in the Crown’s desire to ensure that a conviction is entered, the other things sort of fall off to the side.

“You have to get the Crown to start recognizing that and saying, ‘Well, no. In fact, you have two jobs to do at the same time. You have to prove the elements of the offence, that the person committed the offence. At the same time, you have to try to prove the aggravating circumstances,” Barriere explains.

“For instance, in Webster’s case, you may have had to call evidence of the park cruising scene. That’s a different kind of evidence than you’d usually call in these kinds of cases,” Barriere notes. “It’s almost like you have to change your thinking.

“I think what’s happened is this provision was brought into the Criminal Code, but that sort of thinking change hasn’t taken place yet,” he says.

Numerous requests for a follow-up interview with Oppal went unanswered by press time.