Saturday, May 01, 2010

Hate Crime Conviction in British Columbia

We're curious to know what makes this case different than the recent attack in Edmonton.

Attack on gay man was a hate crime, B.C. judge rules

Michael Kandola sentenced to 17 months in prison for assaulting Jordan Smith

Vancouver, BC — The Canadian Press

Gay hatred was flowing through a young B.C. man the night he and a group of friends swarmed two men holding hands in downtown Vancouver, shouting homophobic obscenities and punching one of the pair in the head, a judge has ruled.

The rare finding that the beating of Jordan Smith was a hate crime was lauded by B.C. activists who say it will be used to bolster future cases where prosecutors argue prejudice is a motivating factor.

Mr. Smith was knocked unconscious and suffered a concussion and broken jaw for daring to challenge the bully who called him and his boyfriend “faggots” in the early hours of Sept. 27, 2008 as the couple meandered through the city's gay village.

Even after Mr. Smith went down, Michael Kandola stood over him, spitting slurs and threatening to kick him in the face again, court heard Friday.

“[At] any of these junctures, there was an opportunity to stop, an opportunity to see the matter was getting out of control, an opportunity to change your ways,” Justice Joel Groves told Mr. Kandola and the victim's supporters in B.C. Supreme Court.

“This opportunity was never chosen by Mr. Kandola.”

Mr. Kandola fled the scene when a taxi driver threatened to call police. Video footage of the incident was captured by a nearby convenience store camera.

Calling Mr. Kandola's actions vicious, unprovoked and cowardly, Justice Groves said hatred of Mr. Smith's sexual orientation was a motivating factor in the attack and as such, he was meting out a harsher penalty for the crime.

Mr. Kandola was sentenced to a total of 17 months in jail. With time off for the period he's already served in custody, the sentence amounts to a year.

The 22-year-old pleaded guilty to assault causing bodily harm in late March.

Prior to the sentencing, defence lawyer Danny Markovitz read out a short apology letter from Mr. Kandola that describes the crime as a “bad choice” fuelled by alcohol and adrenaline.

“My mother and father have instilled many values in me ... that I should like or dislike a person based on how they act, not the colour of their skin or their sexual orientation,” the letter read.

“I am not or have I ever been a person who discriminates against gay people.”

Mr. Groves said the man's remorse was “limited and late in the day.”

“Mr. Kandola individually must know his actions are not only contrary to the law but are also deplored by Canadian society,” he said.

Outside court, Mr. Markovitz said he's seriously considering appealing the case.

Mr. Smith's lawyer, Dasein Nearing, told reporters the “significant” decision will be used by courts down the road.

“I believe it does send a message and I think in his judgment, Justice Groves was particular and instructive in saying this kind of behaviour will not be countenanced by other people,” she said.

The case drew wide media attention as Vancouver's gay community rallied for recognition that the crime was triggered by prejudice.

After the incident, hundreds of people, including the city's chief of police, marched through Vancouver's West End where the incident occurred to denounce violence against gays.

Prof. Janine Benedet, who specializes in equality law at the University of British Columbia, said the decision could be precedent-setting in a city that's seen its share of gay-bashing go virtually unrecognized by the courts.

“It recognizes that there is something particularly significant about assaults that are motivated by discriminatory attitudes, because they really do target not just the victim, but an entire population,” she said.

Gay rights activists were outraged when a judge failed to call the beating death of Aaron Webster a hate crime. Webster was found naked, wearing only boots, after the 2001 attack in an area of the park known to be frequented by gay men.

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