3 min

The burden of proof

When does violence become a gaybashing in law?

AARON WEBSTER. Credit: Xtra West files

The queer community heaved a sigh of relief last December when a youth court judge rebuked Crown counsel and called the 2001 killing of Aaron Webster a hate crime, after all. The Crown had failed to characterize the killing as a gaybashing; the judge disagreed.

The judge was listening, relieved observers commented at the time.

But their relief turned back into anger last month when the Crown again failed to ask for a hate crime designation. The Crown was speaking at a sentencing hearing for the second youth who pleaded guilty in January.

That anger slipped into confusion Apr 21 when youth court Judge Jodie Werier also failed to designate the killing a hate crime as she sentenced the youth.

In contrast, Judge Valmond Romilly labelled Webster’s killing a hate crime when he sentenced the first youth Dec 18.

“The attack and beating of Mr Webster was, in fact, a hate crime as set out in Section 718 of the Criminal Code,” Romilly ruled at the time. Section 718 says a convicted person should get a stiffer sentence if the offence was motivated by bias, prejudice or hate based on, among other factors, “sexual orientation or any other similar factor.”

“I fail to see why this cannot be described as a gaybashing,” Romilly continued. It’s hard to believe that the youth could be “so naïve that [he] did not notice this area [of Stanley Park] was frequented by gays.”

Romilly then pointed to Section 718’s coverage of “any other similar factor,” and ruled that hatred of peeping toms and voyeurs counts as a form of hate motivation, too.

Peeping toms and voyeurs represent a sexual lifestyle, too, Romilly ruled. It’s a lifestyle “which some may describe as deviant-but it is a sexual lifestyle all the same.”

Werier reached no such conclusion. Instead she quoted from the second youth’s interview with police where he repeatedly denies any intention to look for gays that night.

Birgit Reime and her partner Sandra Tomaselli-Reime were flabbergasted Werier did not declare the killing a hate crime.

“I think the whole thing is an offence to the family of Aaron Webster,”

Reime says. “We are shocked.”

At least five other gay men and lesbians were also on hand to witness the decision and support Webster’s family. It was the largest courtroom show of interest in the case from the community to date. Most left the courtroom shaking their heads at the decision.

But Werier’s decision is understandable, says lawyer Garth Barriere. The criminal justice system looks back at a crime through the lens of time, and relies on evidence and police interviews with suspects.

“Judges do the best they can with what they have.”

Werier didn’t see sufficient evidence to label the killing a gaybashing or hate crime, says Barriere.

Instead, she pointed to the youth’s criminal record, his probation violation and, very importantly, the predatory nature of the killing. Together, they added up to an “aggravated” crime and Werier imposed the same sentence as Romilly-a total of three years.

“What both judges got well was the aggravated nature of the offence,” says Barriere. “Manslaughter goes from near-accident to near-murder.”

Community activist Jim Deva agrees that Werier had little evidence to work with to prove that the youth’s actions were motivated by a hatred for gays. “I don’t criticize her at all,” he says. “It was a good sentence. She did everything that she could.”

If Werier had been able to identify the killing as hate crime and had not acted on that, “I’d have been very upset,” says Deva.

Still, Deva is impressed that Judge Romilly saw gaybashing when examining the evidence against the first youth.

“Romilly was a very active judge.

“He identified gaybashing and talked about it in a very intelligent, informed way in his judgement.”

Barriere says Romilly’s judgement is “very interesting” and reflects a gut understanding shared by many in the gay community and in some feminist legal theory.

We know that the West End gets more than its share of violence from outsiders, explains Barriere. Why are people drawn here when they have violence on their minds, baseball bats in their cars? Is it because we’re perceived as less powerful, more vulnerable, living outside the accepted norm?

“Gay men, because we still defy notions of gender and masculinity, are still being attacked.

“Maybe we have to start asking ourselves why else are gay men beat up in the West End. Why are random acts of violence committed in the West End? Because gay people live here. [It’s because] straight assailants know it’s where gay people live.”

Deva was also shocked that three years is the maximum possible sentence for manslaughter in youth court. “It’s shocking to see such a short sentence for such a tragic murder,” he says. He thinks the law should take into account how close a juvenile is to 18. A younger offender should receive less than someone who is 17 at the time of a killing, he says.

“I’m not at all convinced that when he gets out he won’t be a danger to gay and lesbian people,” he adds.

But Barriere says that no length of time in custody can come anywhere near making up for a person’s life. Instead, society needs to focus on trying to rehabilitate the young.

“If you break people’s will, they’ll never be productive again. Jails are very soul-destroying environments. There’s a real danger in slapping young people with very high sentences.”