The lawyer prosecuting an alleged 2009 gaybashing off Commercial Dr asked for a hate-crime designation at the accused’s sentencing hearing Nov 22.

However, as the accused has spent 104 days in jail for various reasons connected to the case, Crown prosecutor Ann Seymour asked for the sentence to be time served plus a period of probation.

The accused, whose name is protected by a publication ban since he was under 18 at the time of the incident, is represented by his third lawyer, Evi dos Santos, after having fired the first two.

Dos Santos agreed with the sentencing submissions but challenged the hate-crime designation.

As a result, Judge Rosemary Gallagher asked for case law on the issue of deciding bias as an aggravating factor where a trial has not been held. She adjourned the sentencing hearing to wait for the information. Now, it likely won’t resume until the new year, the court heard.

Seymour told Gallagher that the accused, who was born in Cuba and came to Canada via the US, knew the victim was gay before the assault.

"He called him a ‘fucking faggot’ several times as he assaulted him," Seymour said.

"This was an unprovoked attack," she continued. "The impact was quite severe. The accused accepts responsibility and shows remorse."

In a pre-sentencing report prepared for the court, the social worker assigned to the case notes the youth saying, "I've got no problem with gay people. I would like to take this all back. I know it's too late."

Having initially pleaded guilty then changed his plea to not guilty, the youth changed his plea back to guilty again on Sept 22.

In an agreed statement of facts presented to the court at that time, Seymour said the youth had been making periodic phone calls to a female friend of the victim's in the early hours of Dec 13, 2009, asking to meet with her. Seymour told the court that the youth and the woman had a child together.

According to the statement, the youth showed up outside the house where the woman and the victim, whose name is now also protected by a court order, were attending a party. When they left the party, the youth followed them.

The woman told the youth to "go home to his parents." When the victim also tried to dissuade the youth from following them, Seymour said the youth told him to "shut up, you faggot."

The youth then kicked and punched the victim repeatedly, according to the agreed statement of facts. Police were called, and the youth was arrested at the scene, Seymour said.

Dos Santos disagreed that his client’s use of the term faggot indicated bias. "It doesn't mean ‘shut up because you're a faggot,’" he told Gallagher. "It means ‘shut up because I don't want you to interfere.’"

Seymour told Gallagher that the victim's jaw was broken in two places, that eyewitnesses and police had observed blood on his face, that he underwent surgery on Dec 14, 2009, to have it wired shut, and that he was given cutters to sever the wires in case he had to vomit.

He had to have his Christmas dinner puréed by his family so he could participate in the celebration, the court heard.

Seymour says the level of violence due to bias around sexual orientation in this case is not acceptable in society.

The victim attended the sentencing hearing and told Gallagher he thought the situation was unfair. “He spent 104 days in custody. I was in pain for so many more days than that. I couldn't open my jaw.

"I couldn't believe he was calling me 'faggot,'" he told Gallagher. "He beat me up for a good 10 minutes. If it had happened a week later, he would have been charged as an adult. It's not fair."

Gallagher thanked him for attending.

He told Xtra outside court he does not want to hear the 911 call again. "I could hear myself choking on the blood," he said.

He said he became concerned when he heard nothing back from police after his initial report, so he contacted Xtra. "As soon as I went to Xtra, the police started calling me," he said. "They started listening."

"It's hard for me to see [the accused]," he continued. "I just want it to end. I want some closure." The case has dragged on for nearly two years, with judges and a justice of the peace expressing concern about the delays. A trial was initially scheduled for July 2010 but was delayed as a result of conflicting reports of the alleged offence. The youth then changed his plea to not guilty, fired his lawyer and hired a second lawyer for a spring trial.

A March trial date had to be rescheduled as the youth's then-lawyer was doubled-booked. The trial was rescheduled for three days starting Aug 22 but put off again after the accused fired his second lawyer. He subsequently hired dos Santos, his third lawyer.

The court also heard the victim lost wages and had to pay for medications as a result of the attack. But, the court heard, the accused is on welfare and works at casual labour and will not be able to make reparations.

"I don't believe he can pay," dos Santos said. "He doesn't want to jeopardize his welfare by working illegally."