Cautious justice

First Crown counsel dropped the charges after halfheartedly attempting to find Russell Young when he failed to come when called. The gaybashing victim was sitting upstairs in his assigned courtroom on trial day; apparently it never occurred to the Crown to look for him where he was supposed to be.

It was easier to just call Young a no-show and drop the case. The Crown later reinstated the charges after a little prodding.

The trial finally got underway last October and one man, Ravinder Toor, was convicted of assault causing bodily harm on Feb 12.

Imagine if the charges hadn’t been reinstated: Toor would have gotten away scot-free with beating a gay man in the Village.

Now Toor is awaiting sentencing. But the judge is reluctant to call it a gaybashing, and the Crown is content to take its cue from the judge.

If an offender commits a crime out of hatred or bias against an identifiable group, such as gays and lesbians, the offender can get a stiffer sentence. In this case, Young testified that the passenger who exited the taxi on the night he was attacked told him, “We know your kind, or we hate your kind, or something to that effect.”

Toor’s co-accused, Randeep Cheema, testified that it was Toor who got out of the taxi. Security video footage from the gas station confirms this point.

Cheema’s lawyer attempted to poke holes in Young’s testimony about the alleged homophobic comment. Young originally told police that the passenger exiting the taxi said, “I know your kind,” Reg Harris pointed out.

Obviously, Cheema’s lawyer was attempting to dissociate his client from the attack, which he successfully did since Cheema was acquitted. But he didn’t suggest that Toor uttered no slur. He only pointed out that the “I” had become “we.”

Granted this is a discrepancy, but surely not a significant one? Pronouns aside, is it not fair to conclude that Toor said something to the effect of knowing (and not liking) Young’s “kind”?

Judge Maria Giardini disagrees with me. Having heard all the evidence — including Cheema’s denial that any comments were made at that point — she ruled there was “insufficient reliable evidence to establish beyond a reasonable doubt that anti-gay comments were made before the fight.”

To be fair, it’s a hard call.

Cheema volunteered at trial that the window on Toor’s side was rolled down when the taxi pulled to a stop near Young. Toor could have easily said something to Young then. The judge said she couldn’t tell from the video, though she could tell that Toor didn’t say anything once he got out of the cab.

She did, however, conclusively find that “at least one of the men yelled out [the] words ‘fucking faggot’ as they were walking away in the lane.”

So at least one of the pair was biased against Young for being gay, right?

But Giardini can’t tell if it was Toor who did the yelling.

Admittedly, we can’t ask that Toor be punished for something he didn’t say. And the judge can’t call it a hate crime if she has any reasonable doubt. So the question is: what’s reasonable, how do we measure hateful intent, and how willing is the justice system to acknowledge gaybashings?

It’s hard to prove intent in the clearest of cases. How do we know what was in someone’s head or heart when they beat up a queer?

In one gaybashing I covered, the attackers were stupid enough to loudly state their intention to beat up a fag or a dyke. But attackers are rarely so forthcoming.

In the Aaron Webster case, Judge Valmond Romilly was willing to interpret the attackers’ actions and find that killing a gay man in a known cruising area while looking for peeping toms demonstrated bias. Of course, Romilly’s a maverick and he took a lot of flak for that decision. But I thought he had guts.

Here, I’d say the judge and the Crown lack guts.

Toor beat Young up in the gay village on Pride weekend 2005. He may or may not have explicitly told Young he knew his “kind” prior to the attack but he and Cheema clearly left the scene together with at least one of them yelling “fucking faggot.”

Justice is subjective. A different judge may have considered that sufficient evidence to call it a gaybashing. I do.