Onlookers' jeers filled a Vancouver courtroom Jan 14 as a provincial court judge acquitted two brothers accused of assaulting a gay couple in June 2010.
Parminder Singh Peter Bassi was charged with two counts of assault causing bodily harm in connection with the incident. His brother Ravinder Robbie Bassi was charged with one count of assault causing bodily harm.
The attack sent Peter Regier and his late partner, David Holtzman, to hospital.
Judge Raymond Low found Regier and Holtzman were "overwhelmed and severely beaten” and subjected to "multiple slurs" about their sexual orientation.
He said the attack left the couple "suffering severe injuries."
But, Low said, the evidence did not prove beyond a reasonable doubt who perpetrated the attack. So he acquitted the Bassis.
The brothers sat calmly on hearing the acquittal, but Robbie Bassi was smiling as he left the courthouse. No one from the Bassi family commented on the decision.
Despite multiple witnesses identifying Robbie and Peter Bassi (above) as the assailants in a 2010 gaybashing, the judge ruled the evidence of their involvement wasn't conclusive.
Holtzman died April 9 while on holiday in Palm Springs with Regier, but Regier was in court surrounded by family and friends. "I'm very disappointed," was all he could say.
Both Holtzman's mother and nephew were in court but declined to comment.
Low said Holtzman and Regier returned home the night of the attack and encountered their assailants on stairs next to their Keefer St condo building.
He said the first man went up the stairs and was preparing to urinate. He was followed by Regier and Holtzman, who expressed their displeasure at the man urinating.
At trial, Holtzman testified that the man allegedly replied, “Fag, are you serious?”
"My response was, 'Yes, I am a fag and yes, I am serious,'" Holtzman told the court on March 23, 2012.
The man responded, “Fucking faggots. I hate you,” Holtzman testified.
Low said Regier then began to photograph the man. He said the "first man rushed to Mr Regier and grappled with him," apparently trying to get the camera. "The first man then rushed in. Holtzman ran in and tried to separate the two," Low said.
"Mr Regier did nothing but attempt to ward off the blows, pleaded for the attack to cease," Low ruled.
Low said the man uttered "continued verbal invective, repeatedly making homophobic insults."
"The second man then rushed past the grappling men and engaged Holtzman,” Low said.
Low said Holtzman was shoved in a planter twice during that part of the incident.
"He is repeatedly punching him to the point where Mr Holtzman winds up curling up in a ball, in a hedgehog position in his words, in the planter," Crown prosecutor Kirstin Murphy told Low in her closing trial remarks Nov 22. "He is being pummelled in the back of the head and having homophobic remarks hurled at him.”
"The degree of violence used by the second man was excessive," Low ruled.
But, he asked, were the defendants the assailants?
"The main issue is whether or not the defendants were in the fight," he said.
Low said video security tapes showed the incident lasted about 1:45 minutes. He said the assault was also witnessed by Craig Costantino, who lived in the building, and by passerby Jaclyn Bruno.
Costantino told the court he recognized Peter Bassi from having played soccer with him.
Low, however, said Costantino's recollection of events did not match the video evidence. He said the neighbour testified he was only feet away when he allegedly recognized Peter Bassi, but the video showed he was at least 20 feet away in lighting conditions that did not match his testimony.
Bruno was captured in a video, which showed men she identified as the accused running from the scene. She also identified them in court.
Low said Bruno testified she could "hear the assailants making repeated homophobic remarks."
The judge called Bruno a "credible, straightforward witness," noting she witnessed the attack for only about 30 seconds.
But, he said, she relied on photographs to identify the defendants. He called it a classic example of where a witness can misidentify someone.
"I am not prepared to give any weight to Ms Bruno's identification of the defendants as the assailants," Low ruled.
Low said both Regier and Holtzman, who last year identified the brothers in court as their assailants, would have been too traumatized in the course of the assault to have had much chance for a clear view of the assailants' faces. They therefore described the men generally, Low said.
"Those general features apply to scores of men in this city," Low ruled.
He said their descriptions of the men to the police were limited. He also said the couple had seen media images of the accused and noted that Holtzman had encountered the accused in the courthouse cafeteria, which the defence claimed could have bolstered his in-court identification.
Low said he had reservations about Holtzman's evidence, saying Holtzman was "evasive, argumentative and tended to exaggerate."
Holtzman's "gratuitous claim" that he was focused on seeing the eyes and faces of the attackers during the assault "defied common sense," Low added.
Low said the point at which Holtzman said he had received 50 blows lasted 20 seconds on the video.
"At a common sense level, it's not possible for a person to receive 50 blows," Low said.
Low said he gave little weight to Holtzman's evidence that was not corroborated by video.
The trial also heard from Robbie Bassi's supervisors at Vancouver International Airport, where he had worked as a security screener.
Collin Hutchinson testified he was 70 or 80 percent sure that a man in a picture taken of a surveillance video was Robbie Bassi.
"Seventy to 80 percent does not meet the standard in a criminal trial," Low said.
Airport security supervisor Kathryn Evans identified Robbie Bassi based on a photograph in which little could be seen of the face and from a definition of a muscled forearm.
Low said the face could not be seen clearly in the photo and there was no definition of the forearm.
The courtroom configuration had to be changed to accommodate the large number of people on both sides of the case.
Roger Lafreniere, a friend of the couple, attended much of the trial. "I'm very disappointed, yes, but you have to respect the decision of the court," he says. "The judge had a very difficult case."
Drew Dennis worked with Holtzman at Out on Screen, which produces Vancouver's annual Queer Film Festival. "We have to accept the judge's decision," Dennis says. "I have to wonder how many witnesses and surveillance videos it takes to deliver justice."