Gay activists are alarmed by a Vancouver judge's refusal to recognize an assault against a gay man
outside the gay village as a gaybashing.

"Geography should have nothing to do with it," says Little Sister's co-owner Jim Deva.

Judge Rosemary Gallagher ruled on Jan 27 that hate was not a motivating factor in the assault that took
place in December 2009 outside a house party off Commercial Dr.

According to the youth court judge, the facts did "not establish beyond a reasonable doubt that the
offence happened because the victim was gay." Moreover, the offence did not happen in a highly
visible homosexual area, Gallagher ruled. And, she said, it was "arguable" whether or not the violence
was extreme or disproportionate.

The attack broke a gay man's jaw in two places, requiring two surgeries, eight screws and a plate to
heal.

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 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."

In a pre-sentencing report, the youth, who can't be named because he was under 18 when he broke
the man's jaw, says he has no problem with gay people. The night of the attack he was trying to get
the mother of one of his children to pay attention to him, to no avail. When her gay friend intervened,
the youth told him to "shut up, you faggot," then punched and kicked him repeatedly.

Though Gallagher applied the judicial test for a gaybashing established by BC Supreme Court Justice
Joel Groves in the Michael Kandola decision in 2010, she found this case didn't meet its criteria.
Instead, she decided the youth attacked because he was angry at his girlfriend for going to a party
instead of spending the night with him.

Groves ruled in April 2010 that 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.

Deva says Gallagher's ruling indicates a potential flaw in the Kandola test that needs to be challenged.

"It sets a dangerous precedent. It means the hate-crime law is only operative in a highly gay area,"
Deva says.

"It ghettoizes our safety," he says, adding that queers throughout BC deserve protection.

"Increasingly, our community is spreading throughout our city, as we are perfectly entitled to do," adds
Jennifer Breakspear, executive director of BC's queer resource centre. "We need to be safe
everywhere in the city."

What does Gallagher's ruling mean for queers in communities like Kelowna that don't have gay areas,
Breakspear wonders.

"This ruling falls short," she says.

Breakspear and Deva are now waiting for David Holtzman and Peter Regier's alleged attackers to stand
trial in March.

Parminder Singh Peter Bassi and his brother Ravinder Robbie Bassi are charged with several counts of
assault for allegedly attacking Holtzman and Regier on their doorstep in June 2010.

Holtzman told Xtra after the incident that he and his partner were repeatedly called "fucking faggots" and
"cocksuckers" during the alleged attack. He and Regier were both taken to hospital and treated for concussions.
Regier needed staples to close his scalp wound.

Holtzman and Regier live near Tinseltown, not a particularly gay area of downtown Vancouver.

Regier says with the trial approaching, it would be inappropriate for them to comment on Gallagher's
decision in the youth case.