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6 min

The missing testimony

What Ed Smith might have said on the stand

Hate crime. In the history of the Aaron Webster case and the controversy surrounding its investigation, the phrase comes up again and again.

The police maintained from the start that it was a hate crime.

Many in the queer community continue to insist it was a hate crime.

And the case became something of a political football in both Victoria and Ottawa, as politicians took turns referring to it as a hate crime.

On May 7, 2002, BC’s then-deputy premier, Christy Clark, called it a gaybashing in the legislature.

On Feb 18, 2003, again in the legislature, Vancouver-Burrard MLA Lorne Mayencourt called it an “apparent gaybashing.”

And the Parliamentary Standing Committee on Justice and Human Rights was told on May 14, 2003 by then-MP Svend Robinson that Webster “was killed because he was gay.”

But, says Vancouver Police Department (VPD) Det Rob Faoro, there was never anything the accused said to police that indicated they were after someone because he was gay.

They “never once said they wanted to kill a gay guy,” Faoro says. “If I had heard anything like that, I know [Crown counsel Greg] Weber would have jumped all over it. They always said peeping toms and bums.”

That doesn’t mean, however, that all the evidence that surfaced in the investigation was presented in court.

That was up to the discretion of prosecutors as they presented a case they thought had a probability of securing convictions.

And three of the four accused were eventually convicted. (Two youths are now serving two years in custody plus a year of house arrest, each. And Ryan Cran, 23, was convicted and sentenced to six years in jail. His co-accused, Danny Rao, also 23, was acquitted.)

The question that remains in the eyes of many, though, is whether or not the extra evidence could have further cemented the case against the accused.

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So what didn’t the courts hear? Ed Smith says he was attacked several times in Stanley Park in the year before Aaron Webster died at the hands of a club-wielding gang.

And, Smith says, the two men who led the attacks against him resemble Cran and Rao.

When Smith first spoke to Xtra West in December 2001, he described his attackers as a “tall, skinny white guy” and a shorter guy of East Indian ethnicity.

Several other guys were there too, he notes.

Smith claims he was attacked four times between November 2000-2001, as he was collecting pop bottles in the park late at night. The last attack took place around Nov 1, 2001, just a few weeks before Webster was killed. He says a group of guys confronted him at Second Beach, pushed him down, beat him with a baseball bat, and called him a “faggot” and a “pervert”.

He’s convinced they knew they were near the park’s gay cruising area. “They knew exactly what they were doing,” he says.

Still, Smith cautions, he can’t say if they were deliberately targeting people they thought were gay. “They were just attacking anybody.”

Following the last attack, Smith wrote down the licence plate number of his alleged attackers’ Jeep Cherokee. Though he says his initial attempts to report the number to police were met with indifference at best, the number eventually came to Det Faoro’s attention. (See story page 11.)

Faoro travelled to Calgary to interview Smith. He showed him photo- graphs of suspects in the Webster case.

But, Smith says, the photos were not of good quality and he couldn’t be sure if they were of the same people who had attacked him.

However, he believes the attacks on himself and on Webster are connected.

Faoro’s findings support that theory. The licence plate number Smith gave him was just one number off the vehicle police eventually identified as Ryan Cran’s.

“I’m willing to testify,” Smith says. “I’m willing to do whatever is possible.”

Crown counsel prosecuting the Webster case initially asked Smith to testify against Rao and Cran. They sent a subpoena to him in Calgary before the trial began.

When Smith received the subpoena, he called the Crown office in Vancouver. He doesn’t remember who he spoke with. But the person told him to stay home.

“He said, ‘we don’t need you,'” Smith recalls.

Crown spokesperson Stan Lowe says Smith was actively considered as a witness. Lowe confirms the subpoena.

But, Lowe says, it was Smith’s being unsure of the photo lineup that removed him from testifying. He couldn’t positively identify his attackers.

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Smith wasn’t the only witness not asked to testify.

A fifth person was allegedly in the park with the accused the night Webster was killed. He cannot be identified because he was a youth at the time.

But he allegedly watched from the bushes, police sources said early on.

The young witness refused to talk to police.

He denies he was there, Faoro says.

“We went to him,” the detective recalls. “Crown did not feel there was enough evidence.”

Lowe confirms this, too. “He wouldn’t even cooperate to the point of giving police a statement.

“He wasn’t even subpoenaed because we didn’t know what he would say.”

But, says Faoro, the two youths convicted in the case both told police the young witness was there that night. One went so far as to say the witness had a weapon and swung at Webster, Faoro says.

But there was nothing solid to confirm it. The young witness was never charged nor asked to testify.

***

That’s not satisfying to some critics. They still want to know why the young witness wasn’t compelled to talk to police and later take the stand.

And that’s not the only thing still rankling about the case.

They also want to know why the Crown didn’t tell BC Supreme Court Justice Mary Humphries that Webster was gay, or that he died in a gay cruising area.

During sentencing submissions for Cran, Humphries asked the Crown four times if there was anything else she could be presented with.

“So the evidence I heard at trial was the totality of the evidence?” she asked prosecutor Greg Weber.

She then mentioned the December 2003 sentencing decision for the first youth convicted in the case, in which Judge Valmond Romilly declared the killing a hate crime.

“Am I missing something?” she asked Weber.

“No, you have not missed anything,” Weber responded.

Former VPD Insp Dave Jones says it’s well known that the area where Webster died is a gay cruising zone. “I think it’s known internationally,” he says.

“It wasn’t a big reach to figure this was probably a gaybashing, probably a hate-biased incident,” he continues.

Jones doesn’t blame Humphries. She’s an experienced trial judge, he says. “I wasn’t surprised overly that, given what she had in front of her, she made the decision that she did.”

It comes down to the Crown’s decision not to mention the gay aspect at trial, he says.

Of course, the Crown had little to prove it was a gaybashing, he notes.

It might have helped if the accused had offered some evidence that their actions were motivated by a hatred for gays, he suggests. But the suspects “stuck doggedly to the euphemism” that they were after peeping toms.

The Crown might have thought that if it argued the hate crime aspect without enough evidence, it could overshadow the main point of the case-seeking a conviction for Webster’s death, Jones speculates.

“If they had clear evidence, I’m pretty sure they would have put it forward,” he adds.

Lowe says the connection between the cruising area, Webster’s sexuality and his death could not be proven in court.

Jones has one more question for the Crown: why did it go with the manslaughter charge in the first place? Jones believes the suspects should have been charged with murder.

A death is considered a murder if the perpetrator consciously meant to take a life or knew that death would likely result from his or her actions.

A case is considered manslaughter if the perpetrator kills the victim without intending to, and without knowing that his or her actions will likely cause death.

The Webster case “was certainly well past the threshold of reasonableness using the types of weapons that were used,” Jones says. “I don’t think that anybody thinks that using a baseball bat on somebody is likely to only injure them slightly. There was a high risk of death and death occurred here.”

But, he says, prosecutors go with the charges they think are going to be most successful. “I think that’s what happened here.”

It’s a question of evidence, says former Crown spokesperson Geoff Gaul.

The Crown can only press charges it can support in court based on the evidence it has at hand, Gaul told Xtra West last year. It would be improper for the Crown to lay a charge it couldn’t prove in court.

“If there’s evidence that makes out a charge of murder, then we present that,” he said. “We have an obligation to proceed on what we believe is the appropriate charge based on our assessment of the available evidence.

“Crown counsel are aware of, and sensitive to, community needs and desires,” he continued, “but we cannot allow that to impact upon our professional obligation to assess the available evidence that we have.”