Not a hate crime, judge rules

Hate was not a motivating factor in an alleged 2009 gaybashing off Vancouver’s queer-friendly Commercial Dr, a youth court judge ruled Jan 27.

Crown prosecutor Ann Seymour had sought a hate-crime designation at the assailant’s sentencing hearing in November. The youth knew the victim was gay before he assaulted him. “He called him a ‘fucking faggot’ several times as he assaulted him,” Seymour told Judge Rosemary Gallagher.

“The response was a violent one and an insulting one,” Seymour argued. “The accused punched the complainant in the face and kicked him numerous times. The force of the punch was so strong it broke the complainant’s jaw. He was called not only a ‘faggot’ but a ‘fucking faggot’ and these statements were uttered in anger.”

After changing his plea several times and dragging the court proceedings through multiple delays, the youth, who can’t be named because he was under 18 at the time of the incident, finally pled guilty in September 2011. But he disputed the hate-crime designation. “I’ve got no problem with gay people,” he said in a pre-sentencing report.

According to the case’s agreed statement of facts, the youth had repeatedly called and asked to meet with a female friend of the victim’s in the early hours of Dec 13, 2009. Seymour told the court that the youth and the woman had a child together.

The youth showed up outside the house where the woman and the victim, whose name is also protected by a court order, were attending a party. When they left the party, the youth followed them.

The woman told the youth to “go home to his parents.” When the victim also tried to dissuade the youth from following them, the youth told him to “shut up, you faggot.”

The youth then kicked and punched the victim repeatedly. Police were called, and the youth was arrested at the scene. The victim’s jaw was broken in two places and required eight screws, plates and two surgeries to heal.

The youth’s lawyer, Evi Dos Santos, argued that his client’s use of the term faggot did not indicate bias. “It doesn’t mean ‘shut up because you’re a faggot,’” he told Gallagher at the sentencing hearing. “It means ‘shut up because I don’t want you to interfere.’”

Seymour urged Gallagher to apply the judicial test for a gaybashing established by Justice Joel Groves in the Michael Kandola decision in 2010.

An attack is likely a hate-motivated gaybashing if an attacker uses homophobic language such as “faggot” before, during or after the incident; if the attack takes place in a gay area; if there was no previous interaction between the parties; and if no alternate explanation is available, Groves ruled in April 2010 as he sentenced Kandola to 17 months in prison for breaking Jordan Smith’s jaw as he walked hand-in-hand with another man on Davie St.

In applying the Kandola criteria to this case, Gallagher found that the agreed statement of facts did “not establish beyond a reasonable doubt that the offence happened because the victim was gay.”

She said the offence did not happen in a highly visible homosexual area. And, she said, it was “arguable” whether or not the violence was extreme or disproportionate.

Gallagher took into account the 104 days the youth has spent in jail since the offence and sentenced him to 12 months probation for assault causing bodily harm. He must also write a letter of apology to the gay man he attacked.

“This is a senseless, unprovoked attack on a stranger,” the judge told the youth, who sat in prison fatigues and leg shackles beside his lawyer.

In her reasons for judgment, Gallagher said the assault happened because the youth got angry at his girlfriend for going to a party instead of spending the night with him.

The youth, now 20, is already in custody and facing deportation to the United States on unspecified matters.

“I’m glad it’s over,” the victim told Xtra outside court. “I hope he learns from it. I have to forgive him. I can’t hold a grudge.”

But, he added, “I think it’s a hate crime, obviously.”

Gallagher noted the youth is originally from Havana, Cuba. His family moved to Florida in 1994 and then to Albuquerque, New Mexico. They then moved back to Tampa, then to Canada in 2009 after his father was robbed at gunpoint three times.

The youth has another child in Florida, the court heard.

The parents are reportedly refugee claimants, but the youth has no status in Canada, the court heard.

Gallagher said the youth stopped attending school when it was alleged he was selling narcotics on the school ground. No charges were laid.

In February 2011, the youth (as an adult) was posted on Vancouver police’s most-wanted list for alleged assault charges that were later stayed.