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GayCalgary® Magazine

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Defining Hate Crime

Political by Evan Kayne (From GayCalgary® Magazine, February 2011, page 38)
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Late November 2010, local Country musician Patrick Masse and a friend pulled their vehicle into a strip mall downtown on 11th Avenue and 5th Street SW. It was early in the morning and they just wanted to get some pizza after the bars had closed. When his friend went into the pizza place, Patrick relaxed in the car and moments later an individual - belonging to a group of four males loitering at the strip mall - tapped on his window.

Patrick, having lived in Vancouver for years, assumed the man was going to either ask for spare change or a spare cigarette, so he rolled down the window. The offender began to call Patrick "faggot" and "homo", then started spitting on him. When Patrick moved (as much as you can from a seated position) to defend himself, the offender punched Patrick the face, causing a swollen eye, bloody nose and a split lip. Patrick was trying to roll up the window, and his friend (who at this point had returned to the car and had witnessed some of this) got out of the car to chase after the assailant.

The group of men retreated, but were still trash talking – including insulting the ethnicity of a cab driver nearby. The friend decided to stand down and look after Patrick, who was in shock. Patrick realized later "it was just a matter of the wrong place at the wrong time...it was just somebody looking for trouble and I happened to be sitting right there" - meaning the victim could have been anyone, gay or straight.

Patrick admits he should have called the police at the time, but he was also thinking about a flight he had to catch out to Vancouver the next day. "I didn’t think it was that big of a deal until I woke up and realized what had happened." When he called the police, the officer on the phone told him it was a hate crime (as the assailant’s actions indicated it was all driven by hate). An officer arrived within ten minutes and took Patrick’s statement. While the Calgary Police Service does have a description of the individuals, given the length of time that had passed after the incident occurred, it is doubtful anyone will be arrested.

In Canada, Gay, Lesbian, Bisexual, Trans, and Queer folk live in a country that allows us the right to marry, and our rights are enshrined in law. Society, in general, is becoming more accepting of us, but this doesn’t discount the fact our community is still at risk of being victimized due to hate crime. But what is a hate crime?

Or rather the question should be, what is a hate motivated crime, for there is no such charge in the Criminal Code of Canada (CCoC) identified as a "Hate Crime". Section 319 does deal with Hate Propaganda and Advocating Genocide, and section 319 covers Public Incitement of Hatred – these are the sections under which Holocaust deniers Jim Keegstra and Ernst Zundel were charged. Yet under assault, arson, vandalism (etc.) an offender can’t be charged with hate assault, hate arson, hate vandalism.

Where the charges of hate-motivated crimes come into effect is in sentencing, according to Constable Lynn MacDonald of the Calgary Police Service Diversity Resources Unit.

"Whenever you talk about additional hate crimes provisions...the courts may define motivations of hate, bias or prejudice aggravating factors in sentencing of an accused....Then what happens during the sentencing part if that person is found guilty, what the judge looks at is those aggravating factors."

Therefore, while an assault could be a hate motivated crime, and it may result in a stiffer sentence for the offender, the offender doesn’t face another charge of "hate crime" along with the assault charge.

In the case of what happened to Patrick Masse, if this incident ever made it to court, it could prove tricky to say this assault was a hate-motivated crime. Specifically, when sentencing, Section 718 of the CCoC compels a judge to take into consideration eight factors on a Hate/Bias Crime. These factors include: hate/bias motive; motivation of the offender; comments and literature; racial, ethnic, gender, or cultural differences; affiliation to organized hate groups, tattoos, graffiti, internet sites; criminal history, and; location of the offence. If no single factor is sufficient to determine this, then a combination of these factors may apply.

By reviewing this list and considering the evidence brought forward, the Court can then assign a stiffer sentence if the judge concludes a crime was hate-motivated. It’s an imperfect process, yet it takes into account the situation as a whole. The police and the courts have to investigate and discern if the assault was motivated by hate. It’s not a simple matter to say calling someone "faggot" while inflicting injury is a hate crime. In many cases, the word is meant particularly as an insult toward someone who is believed to be straight.

"It could be a consensual fight between two guys and a guy might not even know the other guy is gay or suspect he is gay," says Constable MacDonald. "He’ll call him a fag because that’s one [insult] that’s common amongst straight men to use as a derogatory term to put another person down."

There was an even more horrific incident in South Eastern British Columbia this past December 29th. A gay couple on a cross-country skiing trip stopped into a secluded, natural hot spring just north of Nakusp on Highway 23. They were relaxing in the pool and eventually three other people came along (two males, one female). They all sat in the pool for a while until, as part of the conversation the couple "outed" themselves. One of the men, identified as "Terry" got out of the pool and told his friends he was going to kill the couple. One half of the couple ran into the bush and hid, while Terry viciously beat the other male. The victim suffered bruising and cuts to most of his body and a large cut over the bridge of his nose.

After the beating, "Terry" and friends left on snow mobiles. The victim’s partner then returned to assist him. Currently, the BC RCMP have not been able to find the suspect, and are asking for our help. The suspect is described as a Caucasian male, approximately 6 feet tall, around 44 years of age, stocky build with defined muscles and has a short "flat-top" hairstyle. As well, he has a tattoo of a bird’s silhouette on his chest - approximately 2 inches in diameter. What we should know is that the suspect, "Terry", is believed to be from Calgary. Police believe the motive for this crime was one of hate and ignorance relating to the victim’s sexual orientation and are urging anyone with information to come forward.

In this case, because the couple identified themselves as gay, whereupon "Terry" indicated he would cause them physical harm, and then carried this threat out on half of the couple, the police and the courts would be able to cite at least two of the factors to say it was a hate-motivated assault. Of course, they may find more factors after arresting and investigating the offender.

This investigation process allows Police and the courts to really delve into the situation to discover if the offender targeted that person because of their sexuality, and it also prevents any frivolous abuse of the system.

Usually, any claims of "hate crime" triggers extra police resources to fully examine the case. For example, in Calgary, as soon as certain key words are entered into a police report (like "faggot"), a copy of the case is sent to the Hate Crimes officer, Constable MacDonald tells us.

"He reviews the file, he works with the investigators to make sure that all the right questions are asked, all the avenues are explored to see if it was a hate-motivated crime." In this situation, civilians may not be aware of all the checks and balances the police undertake as part of the case. There may be several different officers pursing the hate-motivated aspects alongside the officers who are pursing information on the crime itself. If there are questions that these additional officers see haven’t been answered to determine if the case is a hate-motivated crime, the investigating officers will be asked to go back and do more legwork.

Regarding slurs and insults, while those may be hate/bias incidents, they aren’t crimes by themselves. "A lot of people think that just because someone simply says a word, makes it a hate crime, and it doesn’t." Constable MacDonald told us. "I get what people are trying to say that it should be, but the reality is that it’s not."

This is because the use of a taboo word is not cut and dried. Even in our community (and in other communities) taboo words may be used by members thereof, yet not by outsiders. Or a taboo word may have been allowably used as part of a character’s voice in a work of art (as seen in the recent media coverage of the Dire Straits song "Money For Nothing", the use of the word "faggot" by an ignorant character described in the song, and the split response in our community). For those situations, it’s a grey area where social values, education and discussion are needed to decide what’s allowable.

But for situations where slurs are used along with the intent of harm because the victim is a member of the GLBTQ community, then and only then do we consider it part of a hate-motivated crime.

Finally, if you or someone you know ever experiences what you suspect is a hate-motivated crime, like any other dangerous situation, you should first remove yourself from harm and then contact emergency services (police and/or paramedics).

No matter what you may feel at the moment, no matter if someone has irresponsibly told you that the police will do nothing...REPORT THE CRIME. This cannot be stressed enough. Silence will allow any hate-mongers the license to continue. This time they committed an assault. The next time it could be murder. The police are equipped to investigate and prosecute, and will also put you in touch with Victim’s Support groups. The more we get this out in the open, the better - not just for our community but for the mainstream community as well, because in both assaults there were bystanders who were friends of the assailant. The police will not tolerate hate crime. Our community will not tolerate hate crime. And one day, in another similar assault, the friends of the assailant will realize they should not tolerate it either.

If you have any information on the suspect or the incident in either the Nakusp assault or in Patrick Masse’s assault, call Crime Stoppers at 1-800-222-TIPS (8477).

And online version of the Criminal Code of Canada can be downloaded at: www.gaycalgary.com/u191(GC)



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