Out of curiosity, I asked BC’s attorney general if he knew how many times his prosecutors have sought a hate crime designation in gaybashing trials.
He didn’t, but offered to find out.
“I don’t know if it’s been collated,” Mike de Jong admitted.
Turns out Crown doesn’t keep a record of such things.
“That’s not something that we track,” Crown Counsel spokesperson Neil Mackenzie later told me.
“Looking at our system, there’s nothing in a charge itself that tells us whether it’s a hate-motivated offence or not.”
Incredulous, I rephrase the question, thinking I wasn’t clear the first time and hoping for a different answer.
There’s no count of Crown’s requests for a hate designation at sentencing?
“No, we don’t have a record of that,” he patiently reiterates. Not for race, religion, sexual orientation nor any of the potential reasons where hate may have motivated an offence.
“Well, it’s not information that the branch needs operationally; it’s not something that we require in order to deal with the prosecutions that we deal with,” Mackenzie explains.
Convenient, the cynical angel on my shoulder whispers. If they don’t have those numbers, then they don’t have to account for how many times they invoke or don’t invoke the designation.
Conclusion: Interest in getting convictions for offences committed? High.
Proving the hate or bias motivating those offences? Not so much.
So, we at Xtra decided to go statistic hunting and gathering ourselves.
Since the introduction of Section 718.2 — 15 years ago — BC’s Crown Counsel have only sought a hate crime designation in two gaybashing trials.
Number of gaybashings prosecuted in that period: 16.
Clearly, there’s some ’splaining to do.
De Jong says Crown “ultimately seek and require” sufficient evidence to satisfy the court when pursuing a hate application.
To repeat — again, incredulously: in 16 cases, Crown only found sufficient evidence twice.
It’s like the provision doesn’t even exist.
Yet the AG assures me he’s supportive of having a hate crime designation.
In fact, he says, his prosecutors receive “specific training” to assess if and when they can ask for it.
Sufficient evidence can take many forms — a whole host of them, de Jong elaborates.
For example, “it can be evidence of circumstances, it could be evidence of statements that were made, behaviour.”
But the highlight of my talk with de Jong is this little nugget: “The fact that there is insufficient evidence to trigger the hate crime provision should not act as a deterrent to providing the court at the sentencing stage with evidence of aggravating circumstances,” he offers.
There’s not a lot of reading between the lines to do here, folks. The commander-in-chief of Crown prosecutors is clear as mud: present the evidence of hate, bias or prejudice — and ask for the designation.
Seems like Crown in the Michael Kandola case actually plans to give that “specific training” a whirl. She told us as much.
Kandola has already pled guilty to sucker punching Jordan Smith, breaking his jaw in three places, as Smith walked hand in hand with another man. He also allegedly screamed homophobic slurs throughout the incident.
And get this: Kandola’s lawyer, Danny Markovitz, says he’ll concede homophobic remarks were made.
Evidence of circumstances, statements, behaviour. Check, check and check.
Nope, not a gaybashing, Kandola’s lawyer counters.
Over to you, Crown. Make the case. It’s been a while.