3 min

Where’s Wally?

Tell the attorney general to order his prosecutors to seek hate crime designations in all gaybashing

I should have realized I was witnessing an extraordinary event.

It was my first gaybashing trial. May 5, 2003. And the Crown asked for a hate crime designation.

Just like that.

“This crime has been motivated by hatred for an identifiable group,” Crown counsel Anne Clark told the court.

The assailants’ sentences must “bring home the seriousness of the crime and the outrage of the community over the homophobic remarks,” Clark continued.

And Justice Carol Ross agreed.

Granted, this particular gaybashing was about as blatant as they come. A group of young men lying in wait outside a dyke dance in Gastown, explicitly declaring their hatred for fags and dykes and their desire to bash them.

“Are you a fag? We hate fags! We want to kill fags!” the assailants yelled within earshot of about a dozen witnesses.

Then the gaybashers zeroed in on a woman barely bigger than me, punched her in the face and swarmed her when she hit the ground. They were kicking her repeatedly in the head when police arrived.

Ross designated the assault a hate crime under Section 718 of Canada’s Criminal Code, which provides stiffer sentences for crimes motivated by “bias, prejudice, or hate” against gays and other identifiable groups.

And just like that I got to see Section 718 invoked on a gaybashing. I’ve been waiting to see it used again ever since.

Vancouver courts have heard five gaybashing trials in the last eight years %mdash: but the Crown has only sought a hate crime designation that one time.

This despite the three trials heard in the Aaron Webster killing.

Crown counsel Greg Weber never even mentioned Webster was gay, let alone that his killers chased him, nearly naked, from the entrance to Stanley Park’s gay cruising trail before beating him to death.

Justice Mary Humphries went so far as to ask the Crown if she was missing something.

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

She didn’t but he sure as hell did.

BC’s attorney general says he knows Weber and trusts him. “He’s a very sensitive person and I know that he would have sought the penalty if the evidence was there,” Wally Oppal told me a month ago.

“I’m the head of the prosecutors,” Oppal says. “If there’s any aggravating factor we will vigorously press for higher penalties.”

Really? And what counts as sufficient evidence of anti-gay hatred in the Crown’s eyes, I ask.

Do homophobic slurs count? “Absolutely,” Oppal says. “That’s a very compelling factor.”

So if Michael Kandola %mdash: the man accused of calling Jordan Smith a “fucking faggot” and breaking his jaw in the gay village last September %mdash: is found guilty, will the Crown seek a hate crime designation?

“I better not comment on the specifics of the case,” Oppal says. “But if someone gets assaulted and a slur is directed towards that person then clearly that would be evidence.”

What if it’s not that obvious?

The Crown needs evidence, Oppal says. But it doesn’t have to be a slur, he notes. “Any indication that the motivating factor behind the crime is hate identifiable towards a particular group.”

Sometimes the indicators are hard to see, I press.

“You’re right. But you can draw an inference from people’s actions,” he says.

Like the fact that Webster’s killers were lurking by the gay cruising trail, weapons in hand waiting for prey? That kind of inference?

I ask Oppal if he’ll issue a memo to BC’s Crown counsel directing them to assertively seek a hate crime designation %mdash; and assertively infer anti-gay hatred %mdash; in all gaybashings.

“I don’t think I need to send a memo,” he replies. “If anything, our prosecutors are accused of being too vigorous.”

I’d like to see them be too vigorous in our cases, I tell him.

If anything, BC’s Crown counsel are unbearably cautious when it comes to seeking hate crime designations for us.

“Come and see me about these things,” Oppal says. “If you’ve got cases where you think those factors are being ignored, I’d be quite prepared to hear about it.”

You heard the man.