Unprecedented: BC to see five gaybashing trials in 2010

KANDOLA PLEADS GUILTY, BUT SAYS IT WASN’T A HATE CRIME

Less than a month before his trial was to begin, the man accused of gaybashing Jordan Smith on Davie St in September 2008 suddenly changed his plea to guilty on March 31.

“You admit you committed the assault causing bodily harm of Mr Jordan Smith?” BC Supreme Court Justice Bill Smart asked Michael Kandola.

“Yes,” Kandola said, appearing by closed circuit TV.

Kandola sat quietly for the rest of the proceedings, clad in orange prison garb and sporting a new beard.

He will return to court for sentencing on April 26.

rown prosecutor Dasein Nearing told reporters the Crown intends to present evidence at sentencing that the assault was motivated by hate.

However, defence lawyer Danny Markovitz says Kandola intends to fight the hate crime designation.

“To him, it’s mortifying to be labelled as someone like that, and he wants the gay community to know he has absolutely no ill feeling toward them,” Markovitz says.

The maximum sentence for assault causing bodily harm is 10 years. If the court designates it a hate crime, Kandola will face a stiffer punishment for the assault.

Kandola was to stand trial for the more serious charge of aggravated assault, but the Crown accepted his guilty plea for assault causing bodily harm. The maximum sentence for aggravated assault is 14 years.

Nearing notes Kandola has already served four months in jail since his arrest. Under current law, that means he will receive an eight-month credit toward whatever sentence is handed down.br />

Justice Smart will not be the sentencing judge. But he told Nearing and Markovitz he would make a note that hate motivation will be an issue at the sentencing hearing so the next judge is aware of it.

Kandola is expected to be in court in person for the two-day sentencing hearing.

Smith was holding hands with another man on Davie St at Hornby when a group of men, including Kandola, attacked him.

Kandola sucker-punched Smith, who fell to the ground unconscious, his jaw broken. His jaw would need to be wired shut for a month and a half to heal.

The group, including Kandola, allegedly yelled anti-gay slurs throughout the incident, including “You fucking faggot!”

Markovitz has characterized the words as “stupid, juvenile.” He concedes they were homophobic but says they were not fuelled by hate.

Kandola was facing a second count of uttering threats to cause bodily harm towards the man Smith was holding hands with, but that charge was dropped when he pleaded guilty to assaulting Smith.

Kandola has been in custody since his bail was revoked last month after he was charged with robbery and use of an imitation firearm in connection with a jewellery store robbery in Surrey in June 2009.

BRUTAL BASHINGS AND (MOSTLY) CROWN NEGLECT
Gary Gilroy is sentenced to just five years in prison for stabbing David Gaspard 65 times with six different knives on Sept 29, 1994. Gaspard’s body was butchered beyond recognition and a five-foot circle of floor had to be cut out of his apartment where his blood had soaked through the wood. Gilroy claimed he snapped after Gaspard made “unwanted sexual advances.” The Crown bought it.
Five men entered the Edge café on Davie St, yelling “fucking faggots” on May 6, 1994. They attacked the people inside, compressing one man’s spine, hitting another over the head with a wrought iron stool and breaking another man’s wrist. Hardev Singh Pangalia and Rabinder Singh Johl are charged with assault causing bodily harm. Harpreet Singh Bhandal is charged with assault. Two years later, only one man is convicted. In a plea bargain, Johl agrees to plead guilty if the Crown drops the charges against the other two. Judge Wally Oppal gives Johl community service and probation. Oppal later becomes BC’s attorney general.

2000
Gaybashers lay siege to Michael Bugera’s Surrey home, surrounding it and pelting it with rocks and ripping wood from his front gate. “You are going to die, fag. I am going to fucking kill you myself. I am going to cut off your fucking cock and shove it up your ass,” one of them yelled from the bushes. Though a police dog tracked one man from Bugera’s yard to a neighbour’s, no charges were ever laid.

2002
Chris Iverson is attacked in the 22nd St SkyTrain station on Aug 28, 2002. “They kicked my two front teeth to the back of my throat,” he told Xtra West at the time. “Blood was everywhere.” Though police arrested one youth in the case, the charges were eventually dismissed because the Crown said there wasn’t enough evidence to bring him to trial.

2003
Dalvinder Singh Khabra, Najwinder Singh Nangal and Sukhdeep Khela plead guilty to assault causing bodily harm, after swarming a woman outside a lesbian dance in Gastown then kicking her in the head when she fell to the ground, on July 28, 2001. “We hate fags. We want to kill fags!” they yelled, right before they zeroed in on their prey. The Crown seeks a hate crime designation. The court’s sentence must “bring home the seriousness of the crime and the outrage of the community over the homophobic remarks,” lawyer Anne Clark says. The judge agrees and sentences the men to 12–18 month sentences in the community.

2005
Aaron Webster is brutally beaten then left to die near the Stanley Park cruising trails on Nov 17, 2001. More than a year later, police arrest the first youth in the case, who pleads guilty to manslaughter. On Dec 18, 2003, Judge Valmond Romilly sentences the youth to three years and unilaterally calls it a hate crime. A second youth pleads guilty to manslaughter and gets three years, but no hate crime designation, in another courtroom. On Feb 8, 2005, Justice Mary Humphries sentences Ryan Cran (the only adult ever convicted in the case) to six years in jail. Despite prompting the Crown for more evidence at sentencing, Crown counsel Greg Weber doesn’t seek a hate crime designation and, in fact, never says the word “gay” at trial. The gay community calls for an investigation into the prosecution of the case.

2008
Khalid Alzghoul leaves the Tutti Convenience store and starts attacking people on Davie St with a hammer on Pride Sunday. As he’s being arrested, he tells police that Jesus wasn’t gay and “it’s wrong to let the gays have their parade on a Sunday.” He also says he was sent to punish the gays. At trial, Crown counsel Daniel Porte seeks a hate crime designation. Judge T D’Arcy McGee refuses, citing a pre-sentence report in which Alzghoul claims to harbour “no ill feelings towards homosexual people despite the comments he made at the time of his arrest.” Alzghoul gets two and half years for assault and other charges, but will only serve four months after receiving credit for time already served while awaiting trial.

2008
While walking hand in hand with another man on Davie St in September 2008, Jordan Smith is allegedly swarmed by a group of men yelling “fucking faggot” and punched in the jaw. Michael Kandola pleaded guilty to assault causing bodily harm on March 31, but denies it was a gaybashing. The Crown says it will seek a hate crime designation at sentencing.
Kandola’s sentencing begins April 26 in BC Supreme Court.

2009
Ritchie Dowrey is punched in the face at the Fountainhead with such force he smashes his head on the floor and suffers severe brain damage. He is still re-learning how to walk and talk. Shawn Woodward faces one charge of aggravated assault in connection with the incident. “He’s a faggot. He deserved it. I’m not a fag. The faggot touched me. He deserved it,” he allegedly told witnesses.
Woodward’s trial starts July 21 in Vancouver provincial court.
—Robin Perelle with files from Richard J Dalton Jr

SEEK HATE CRIME DESIGNATION, AG TELLS CROWN
An interview with the head prosecutor
-Natasha Barsotti
Xtra: The gay community feels that Crown is reluctant to seek hate crime designations at sentencing. As head of Crown counsel, would you ask your prosecutors to more assertively seek the designation at sentencing for gaybashings?

Attorney General Mike de Jong:The Crown and the victim need to work together in terms of presenting evidence. Now sometimes there are cases where the Crown has sought the designation and the court has refused to apply that designation. So at the end of the day, the presentation of evidence doesn’t guarantee that the court will make the finding.

Xtra: It has been suggested that Crown wants a “smoking gun” — a verbal statement of hate — before seeking a hate crime designation. But very often it’s the circumstances surrounding an attack that make it clear that a gaybashing has occurred.Do prosecutors need to be made more fully aware of gay culture to know what evidence to present in a gaybashing case?

AG:The prosecution services has launched some specific training initiatives relating to the criminal code hate crime provisions.
What Crown ultimately seek and require in making the application is sufficient evidence to satisfy the court, and that can take many forms. It can be evidence of circumstances, it could be evidence of statements that were made, behaviour — there’s a whole host of things that contribute to a judge making that determination.
Xtra: Is it so hard to prove hate as a motivating factor?
AG: The burden is a high one. The courts have determined beyond a reasonable doubt, and whilst at times that is frustrating for Crown counsel and even more frustrating for victims, that threshold is a reflection, I believe, of Parliament’s desire to balance societal abhorrence for crimes motivated by bias, prejudice or hate with the freedoms that people have.
b>Xtra: Is the threshold of beyond a reasonable doubt too high, in your estimation, for cases like this, for gaybashing cases?

AG: The question is: what would you replace it with? Our criminal law is built initially around the presumption of innocence, and that the Crown is required to prove criminal activity beyond a reasonable doubt. And Parliament has determined that in assessing the motivation of a crime with respect to bias, prejudice or hate, that too must be established beyond a reasonable doubt.
Xtra: Do you know how many times Crown prosecutors in BC have sought a hate crime designation at sentencing in a gaybashing trial?
AG: I don’t have that number. I’ll try to get it. I don’t know if it’s been collated, but I’ll try.
Xtra: It’s argued that Sec 718’s introduction into the Criminal Code has proven to be a conceptual challenge for Crown — that is, they are accustomed to presenting evidence of guilt for an offence but not proving aggravating factors like hate motivation at trial. The result is that evidence of hate is not presented. What do you think?
AG:Well, there are certainly a number of examples of cases where the Crown has presented that evidence and where the Crown has obtained the designation by the court.
Xtra: In gaybashing trials?
AG:Well, in a number of cases where 718.2 has been applied. It’s a relatively new provision and the law continues to evolve. I’m sufficiently interested — in fact, I’m tremendously interested — in the message that I have tried to convey to prosecution branch: when a file comes in where there are perceived at the investigative level to be elements of bias, prejudice or hate, the file immediately gets designated as such, and so as it works its way through the various appearances and on its way to trial, any prosecutor who handles that file will know there’s an element of that associated with the charge.
Xtra: By Xtra’s count, there have been seven gaybashings prosecuted over eight years and only twice, as far as we can see since 2001, has the hate crime designation been asked for. Are you satisfied with a statistic like that?
AG:Well, I’m not sure what the statistic tells you. The more important question is whether or not in cases where there is evidence to lay before the court that would trigger the application of 718.2 of the Criminal Code, that that evidence has been laid before the court.
Xtra: Do you think hate-motivated crimes — like ones where hate against gay people is manifest — should be punished more severely?
AG: I am supportive of the enhanced provisions of 718.2, yeah. I think in providing for that amendment to the Criminal Code, Parliament was saying that in clear, explicit terms that people who perpetrate criminal activity motivated by hate against a particular group, should have that factor taken into account and be subject to harsher penalties.

Xtra: What specific assurances can you give the gay community that as the new attorney general, you will lead your prosecutors to consistently and assertively seek hate crime designations in gaybashing cases?
AG:Where there is evidence that can be laid before the court as part of a submission around aggravated circumstances, then that should happen.

And it should even happen in cases where there is perhaps insufficient evidence to trigger 718.2. 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.