3 min

Will the crown fail us again?

What will it take to get a hate crime designation if Kandola is convicted?

As is so often the case, Jordan Smith and Charles McKay didn’t know they were headed for a crossroads when they left the Blenz on Davie St Sep 27.

It was a little before midnight on a Saturday night and the two were just in the early stages of starting to see each other.

I don’t know who reached for whose hand, and it doesn’t really matter.

I do know the feeling that whispered down their spines as they crossed Hornby St and saw the guys who, in the next moments, would allegedly swarm them.

“As we crossed the street I immediately felt —I had an uneasy feeling,” Smith tells me, speaking publicly for the first time since his alleged attack.

I know that feeling. I think most gays and lesbians who dare to express their attractions in public have encountered that feeling at least once in their lives.

“What the fuck is this?” Smith and McKay allege the men demanded as they drew near.

“They swarmed us,” Smith alleges. “They made it impossible to continue walking up the street.”

“They were yelling, ‘You fucking faggot!'” McKay alleges.

Smith didn’t let the comments go unchallenged. “What do you mean: what is this?” he replied.

Moments later he was on the ground, out cold. His jaw would need to be wired shut for a month and a half to heal. It’s still not properly realigned, he says.

McKay says Smith’s alleged assailant then stood over his prone body, still yelling “fucking faggot” and “homo.”

“It was a gaybashing,” Smith alleges. There’s “no other word for it.”

Obviously, these are all just allegations at this stage since the case has yet to be heard in court. And Michael Kandola, charged with aggravated assault in connection with the incident, is innocent until proven guilty.

But if Smith and McKay’s allegations prove accurate, then I have to agree with Smith: it is a gaybashing. There really is no other word for it.

Two men holding hands in the gay village. Allegedly called “fucking faggots” and then attacked.

Then allegedly called “fucking faggot” some more, as one gay man lies unconscious on the ground, his jaw broken.

What would you call it?

The real question is: what will the Crown and the courts call it?

Crown counsel in this city and indeed across the country have an infuriating habit of being far too cautious about presenting evidence of hate motivation when it’s based on sexual orientation.

Remember the Aaron Webster case? Where Crown counsel Greg Weber couldn’t even bring himself to mention Webster was gay?

Needless to say, Weber never raised the prospect that Webster might have been targeted and beaten to death because he was gay. Never mind that Webster was nearly naked emerging from the gay cruising trails in Stanley Park.

It was enough for Judge Valmond Romilly, who said he doubted Webster’s killers were “so naïve” as to not notice the area was “frequented by gays.”

“I fail to see why this cannot be described as a gaybashing,” Romilly ruled, unilaterally adding a hate crime designation for the first youth sentenced in the case. That was the first of three Webster trials. None of the prosecutors would touch it.

Short of an attacker actually uttering his intent to beat up fags or dykes (which happened in a 2001 Gastown gaybashing where the Crown actually sought a hate crime designation at sentencing and the judge agreed), precious little evidence cuts it in the Crown’s eyes.

“I can’t really get into discussing the specifics of the prosecution or the evidence that may be called,” Crown spokesperson Neil Mackenzie says when asked if his colleagues will seek a hate crime designation this time if Kandola is convicted.

“I certainly appreciate the interest that your readers have. We’re certainly aware of the circumstances of the incident. And we’ll present whatever evidence is available with regard to the alleged offence,” he promises.

Incidents motivated by hate “are considered serious matters and are treated as such,” he adds.

Well, I certainly hope the Crown considers this matter serious. In the aftermath of Smith’s alleged gaybashing, 2,000 members of our community and allies poured onto Davie St to protest the violence and hold hands for justice. Just imagine what we might do if the Crown fails us again.