Rao walks

Emotions ran high in BC Supreme Court Dec 10 as Justice Mary Humphries acquitted one man and found the other guilty of manslaughter in Vancouver’s highest profile gaybashing case in years.

“It just makes me sick to see what happened here today,” says David McDonald, just moments after hearing the acquittal. “That bastard is going home now as if nothing ever happened. And Aaron Webster will never go home again.”

Police found Webster’s brutally beaten body near the gay cruising trails in Stanley Park in November 2001. He had been attacked by a group of young men and left to die.

Ryan Cran, 22, and Danny Rao, 23, were charged with manslaughter two years later. Their trial began last month in BC Supreme Court. It ended last week, with a split decision that sent a shockwave through much of the gay community.

“Justice hasn’t been done,” Greg Bazian says angrily outside courtroom 55. He’s still wearing his “I’m gay not a peeping tom” T-shirt to protest the Crown’s failure to use the word ‘gaybashing’ at trial.

The gay community is less safe because of Rao’s acquittal, Bazian says. Not only is Rao once again on the streets, but people may get the message that they can come down to the gay area and attack queers.

In her ruling, Justice Humphries said she had no choice but to acquit Rao because there was too much reasonable doubt to find him guilty.

Though the Crown’s two star witnesses clearly put Rao at the scene of Webster’s killing as an active participant, the judge ruled their testimony could not be trusted.

The Crown’s star witnesses in this case were two youths who admitted to participating in the attack, pleaded guilty and agreed to testify against Rao and Cran in exchange for lighter sentences for themselves. Though there were some discrepancies in the details of their accounts, both youths told the court that Cran drove them and Rao to Stanley Park that night, that Cran had weapons in his car, and that the group armed itself then walked to Second Beach to beat up “peeping toms.”

The youths also testified that both Rao and Cran helped chase Webster across the parking lot, and that Rao struck Webster repeatedly after the group surrounded him at his car.

But their testimony unravelled under cross-examination, as the defence lawyers exposed inconsistencies, guesses, assumptions and lies.

The youths’ testimony was “so fraught with inconsistencies and self-serving untruths” that it would be “dangerous” to base a conviction on their evidence alone, Justice Humphries ruled Dec 10.

Not only did the youths make a deal to minimize their own punishment and deflect the blame-they also “admittedly lied under oath, contradicted themselves and each other, and offered no plausible explanation for any of the inconsistencies in their evidence.”

As such, the judge ruled, “it would be unsafe to found a conviction on any piece of their evidence unless it is corroborated by other evidence which I find to be reliable.”

She could find no such corroborating evidence for Rao.

The closest she came was Cole Bunke’s evidence about a conversation he had with Rao some time after the attack.

Bunke told the court that he ran into his friend Rao at the Royal Oak SkyTrain station a few months after the incident. The incident came up in conversation, he said, and Rao “mentioned being there to me. But he never specifically mentioned that he had anything to do with it. He just mentioned being at Stanley Park and that they were there looking for peeping toms, beating up peeping toms, or whatever it was that they” Bunke trailed off.

Rao also referred to the incident another time, the court heard, this time from a witness named Lance Rudek. Rudek went to school with Cran and later worked at a Burnaby pool hall Cran liked to frequent. Several months after the incident, Rudek arrived at Cran’s house to find Cran and Rao installing low-glows under Cran’s car. When someone suggested they take the Jeep downtown to show it off, Rao said: “We shouldn’t make another trip like the last one we made downtown.”

Cran got angry, Rudek told the court, because “Danny had spilled some information.” Then Cran allegedly told Rudek that “it was them” and named the Crown’s two star witnesses as accomplices.

Neither conversation is enough to convict Rao, the judge ruled.

“Rao’s conversation with Bunke several months later as to why the group had gone to Stanley Park-‘looking for, beating up peeping toms, or whatever it was that they’-may indeed support an inference that Rao went there for that purpose and participated in the beating. However, it may only show that he had been at the park that night and knew what had happened,” Humphries ruled.

According to Canada’s Criminal Code, it’s not illegal to be a passive spectator at the scene of a crime. A person can only be convicted of manslaughter if they actively participated in its commission-either by striking the blows, or explicitly encouraging others to strike the blows, or helping others strike the blows (say by helping them chase, catch and corner the target).

Bunke and Rudek’s evidence fell short of conclusively proving that Rao was an active participant in Webster’s killing, the judge ruled.

“Bunke was quite vague in his account of the conversation, but said that Rao had never specifically mentioned that he had anything to do with it. The comments in Rudek’s presence could also be construed either way.

“The case against Danny Rao really comes down to the evidence of [the two youths] that Rao was present at the scene of the beating and was actively participating in it. For the reasons set out above, it would be dangerous to base a conviction on that evidence without something to support it.

“In the result, on a consideration of all the evidence, I am unable to find that the Crown has proven beyond a reasonable doubt that Danny Rao participated as a principal, an aider or an abetter in the manslaughter of Aaron Webster and I must find him not guilty.”

**

Cran, however, is a different story. Unlike Rao, Cran confessed his active participation to Rudek and to another witness named John Morgado.

At trial, Rudek told the court that Cran came into the pool hall one night, placed his keys on the table, pulled up a chair and said: “Lance, we lynched a guy. We lynched a guy. We beat this guy up.”

The court also heard about the time Cran told Morgado that he and his friends went to the Second Beach area of Stanley Park, found a guy naked and started beating him.

When Morgado asked Cran directly if he killed Webster, Cran allegedly replied: “Yeah, it was us.”

“I am satisfied beyond a reasonable doubt that Cran was telling Morgado the truth when he stated that he had participated in the beating of the naked man at Stanley Park,” Justice Humphries ruled, “and that he told Rudek the truth when he said they had ‘lynched a guy.'”

Both Morgado and Rudek were “reliable and credible witnesses,” she continued. Their testimony corroborates the youths’ evidence and confirms “Cran’s intention to participate in the beating and his actual participation.”

Cran also drove the group to Stanley Park and had the weapons in his car, the judge noted.

“On a consideration of all the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Ryan Cran was present at the scene of the beating and participated in it as a principal.

“There is no other conclusion to be drawn than that Cran would know that participation in a beating in all of these circumstances would result in bodily harm that was not trivial. It does not matter that Mr Cran may not have intended the death of Mr Webster. Mr Webster died from the beating in which Ryan Cran participated.

“I find Ryan Cran guilty of the manslaughter of Aaron Webster.”

**

Cran’s conviction came as a great relief to at least one gay observer in the courtroom.

“I was really frightened that they would let them both off,” Brad Teeter says. “I’ve lived long enough to see that justice has not always been done in the area of violence against gays. Often times, we’ve suffered abuse at the hands of the justice system, in addition to the physical and verbal violence we get on the streets.”

Teeter still remembers the time he intervened to stop a gaybashing in progress. The police caught the basher, a US soldier, and pressed charges. But when it got to court, the judge congratulated the soldier on his restraint and lambasted the gays, Teeter says.

The memory haunted him as he waited for the verdict on Dec 10.

Then Justice Humphries convicted Cran. “It was, like, hallelujah we’ve finally been heard!” Teeter says.

“This is what justice feels like.”

But his relief was short-lived. Moments later, the judge found Rao not guilty.

“It was a sinking feeling,” Teeter says. “A realization that we’re making progress but there’s still a way to go. The fact that this fellow could be as involved as he was shown to be and walk away is a sign that we still have a way to go.

“Even if he was just with that mob that stood in the way of Webster getting to freedom, he was part of that scenario,” Teeter insists, unable to forget the youths’ testimony, however unreliable.

David McDonald hovers nearby, his stomach still in a knot outside the courthouse. He can’t accept Rao’s acquittal, either. If Rao “wanted no part of it, he could’ve made a couple of choices. He could have defended Aaron,” he says.

Rao’s acquittal sends a message that gay men’s lives aren’t as valuable as other people’s lives, McDonald continues. Had this case been about a straight man attacked by a mob in broad daylight-“I think people would have been more horrified. But I think maybe because he was a gay man, naked in a park, people make a judgement.

“But the bottom line is, those guys went there with bats and pool cues and beat him and that’s not okay.”

McDonald’s frustration boiled over in court after the verdict was read and everyone rose to leave. As Rao rose in the defendants’ box for the last time, McDonald called him a “scumbag.”

Rao turned around and confronted him.

“You’re a murderer just like he is!” McDonald accused him.

“Fuck you!” Rao retorted angrily, his voice rising, as the court sheriffs led him away for processing.

McDonald’s outburst was just one of several. As the gay observers filed out of the courtroom, their pain mounted palpably. Clustered in groups around courtroom 55, some expressed anger, others shock, others disappointment and others fear about Rao’s acquittal and imminent return to the streets. Some called for a protest. Most felt the justice system had failed the gay community once again.

And it wasn’t just Rao’s acquittal they were upset about. Many observers were also frustrated with Cran’s continued release on bail. Crown prosecutor Greg Weber had asked the judge to revoke Cran’s bail after she convicted him of manslaughter. But Cran’s lawyer, Kris Pechet, objected. Pechet argued that Cran has complied with the terms of his house confinement since his arrest. He also said Cran’s family would like to have him home for the holidays. And, he added, having Cran accessible at home would make it easier for Pechet to meet with his client to prepare for a January sentencing hearing.

The judge was not swayed by the home-for-the-holidays argument, but she was persuaded by Pechet’s sentencing preparation argument. Cran left the courthouse still on bail.

For Teeter, this decision just added insult to injury. “This man has just been convicted of manslaughter,” he points out angrily. Letting him remain free on bail “just seems to minimize and dismiss the seriousness of what happened.”

“It pisses me off like there’s no tomorrow,” McDonald adds. “I wonder what he’s going to get for Christmas?”

**

With Rao acquitted, and Cran still out on bail, McDonald says he’s not optimistic about Cran’s upcoming sentencing hearing. “I hope he gets the maximum he can get,” he says.

But he’s not holding his breath.

Killers convicted of manslaughter can get anywhere from no jail time to life imprisonment, depending on a variety of factors. One such factor-that all the gay observers are pushing for in this case-is a hate crime designation, which generally results in a longer sentence. The Crown can seek a hate crime designation if it can prove the convicted killer was motivated by hatred of a specific group, such as gays.

McDonald is crossing his fingers that the Crown seeks such a designation for Cran. But, again, he’s not holding his breath.

Neither is Teeter. “I’m a bit dubious,” he says. After all, the Crown hasn’t called Webster’s death a gaybashing yet.

“It was up to the Crown to make that case and he doesn’t seem interested in doing so,” Teeter says.

But it was a gaybashing, he insists. These guys went to a part of Stanley Park frequented by gay men, found a naked man, brutally beat him and left him to die.

Cran’s sentencing hearing will take place Jan 27, 2005 in BC Supreme Court on Nelson St at Hornby.

DEMONSTRATION.

Sun, Jan 23, 1 pm.

Courthouse Steps.

Corner of Nelson & Hornby Sts.