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Court
illustrations courtesy of
Read Ontario's Court of Appeal decision (Aug. 26, 2004)
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Legal Canada - Ontario - Guilty! Assault on gay pastor not "trivial" August 29, 2004 Guilty!
Assault on gay pastor not "trivial" "I
called my sister in New Brunswick, as I had done on one previous occasion. I said
'I love you, I care for you,' and explained what was happening. I said, 'If anything
happens, tell our parents that I love them.' I did not tell my partner, but I
was absolutely convinced, the night before, that I wouldn't make it through the
next day." The morning of our marriage we were driven to the Metropolitan Community Church of Toronto (MCCT) by a security professional in a vehicle with darkened windows. The driver, trained to ensure we weren't being followed, drove along side-streets, until we approached the police barricades that protected our church. We were told to remain in the van until the police were ready for us. Emergency response vehicles stood by in the streets. Mounted police on chestnut horses were in a row on a side-street. When the van's door opened, we were instructed to move quickly through the line of the police and into the church where our body guard was waiting for us. All this, because intelligence sources had given credibility to threats against life and property that had been generated as a result of MCCT's plan to issue a legal government record of marriage to us and our friends Anne & Elaine Vautour. We had arrived for the regular 11:00 a.m. Sunday Service on January 14, 2001, three hours before our marriage was scheduled to be performed.
Kubassek sat through most of the service, until a time came when people were invited to step forward to the front of the church for a blessing and a prayer for healing. Kubassek went to the front of the church, turned to the congregation, waving papers, shouting, "Hear the word of God! Homosexuality is a sin and is unnatural ...." Reverend Hawkes, wearing a bulletproof vest under his clothes, stood between Kubassek and the congregation, outstretched his arms, and asked the crazed women to sit down, reminding her that she was interrupting a worship service. Kubassek pushed the Reverend, who fell back, uninjured. Security soon rushed to the Reverend's assistance, removing Kubassek from the sanctuary where she was arrested by police.
A trifling matter is "Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked."
"In
reaching the conclusion that Ms. Kubassek’s
conduct was not trivial," Justice Catzman wrote on behalf of the court, "I
have considered both the assault itself and the context in which it took place.
Ms. Kubassek’s act of pushing or shoving Rev. Hawkes was intentional. Although
he suffered no injury, he did fall backwards and almost tripped over a pew that
was behind him. It is instructive to recall the circumstances in which the assault
took place. The respondent chose to come to Metropolitan Community Church that
Sunday morning. She chose to come to the front of the church for a purpose unconnected
with the invitation extended to the congregation. She chose to deliver a message
that she knew would fall on unreceptive ears. She chose to ignore the request
of the senior pastor of the church not to interrupt the service. She chose to
push or shove him to the side so that she could finish what she had to say. That
he tripped, but did not fall or suffer injury, was purely fortuitous. She could
fully have expected (as the trial judge found) that to go up to the front and
preach to the congregants in terms she knew would be offensive could cause a disturbance.
Against this backdrop, the push or shove that she intentionally Ms. Kubassek was found guilty but she was discharged absolutely. It's not in anyone's interest to criminalize a victim of spiritual abuse. Ms. Kubassek's behaviour is, at least in part, the result of the faith she has placed in a religion polluted with intolerance and hatred. Canadian courts have made it clear that bigots cannot stop us from taking our rightful place in our communities. The latest judgment from Ontario's Court of Appeal makes it clear that attempts to interfere will be taken seriously. Ms. Kubassek's action that day was not only an assault on a gay icon, it was an assault on the expansion of human rights, and not a trifling matter.
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applied
to Rev. Hawkes cannot appropriately be characterized as an “irregularit[y] of
very slight consequence … a mere trifle, which, if continued in practice, would
weigh little or nothing on the public interest” (These words are taken from the
statement of the de minimis principle in The Reward (1818), 2 Dods. 265, 165 E.R.
1482: see para. 19. ). To minimize the assault by ascribing to it the designation
“trifling” or “trivial” is to ignore the realities of what transpired between
Ms. Kubassek and Rev. Hawkes that Sunday morning."
