Soft sentence in racially motivated attack

April 8, 2010

Nick Ferrio and Malissa Farnham

Outrage and anger were front and centre at a Newmarket Court February 12, as Trevor Middleton, of Sutton West Ontario was sentenced to two years less a day in jail for his participation in racially motivated hate crimes on Asian-Canadian anglers on September 16, 2007.

Susan Eng, a lawyer and activist in the Chinese community in Toronto, was disappointed with Justice Alfred Stong’s sentence, stating, “it was really appalling in the view of everyone in the room except of course of the family and friends of the perpetrator. Those of us in the advocacy group wanted to hear the judge have an absolute finding; that in fact the activity was motivated by hate.”

Reportedly, Justice Stong found Middleton was “partially motivated” by racism in his attack. While the prosecution was expecting a sentence of 8 to 10 years based on section 718.2(a)(i) of the criminal code which entitles a judge to enforce a more severe sentence when a crime is motivated by hate. However, Justice Stong gave Middleton a sentence of only two years less a day, as he had no prior criminal record and was only 20 years old at the time the crime was committed.

The details of the altercation that ultimately lead Shayne Berwick, to suffer injuries resulting in severe brain damage and confinement to a wheelchair, are horrific and unsettling. A group of mixed race anglers were fishing on the shores of Lake Simcoe at Mossington Park in Sutton, when two of them, both Asian Canadian, were approached by local young men asking to see their fishing licences.

They were then pushed into the water and an altercation ensued between the two groups, ending in a high speed car chase down a narrow hedged road with a number of sharp turns. Middleton, driving a pick-up truck, repeatedly rammed into the back of the Honda Civic driven by Ruohang Liu, that eventually was pushed off the road. It slammed into a tree and ejected two of the passengers, one of which was Berwick.
Although this particular incident was the most severe, it is certainly not isolated. These acts of purported ‘vigilante justice’ targeted at Asian anglers have taken place some thirty times between 2007 and 2009 in Ontario, according to a report by the Metro Toronto Chinese and Southeast Asian Legal Clinic. Of note is the fact that not one of the anglers reporting attacks were found to be fishing illegally.

This case set a precedent within the Canadian judicial system, as Justice Stong took judicial notice of the term “nipper-tipping” – the name given to this small-town pastime of pushing anglers of Asian descent and/or their equipment into the water – as an inherently and unequivocally racist term.

Eng argued, “People can feel comforted by the fact that the legal system works, at least in part.

Acknowledging that this case was hate motivated beyond a reasonable doubt and taking judicial notice of ‘nipper-tipping’ as a racist term are important from the point of view of advancing the law and the cause of anti-racism as a judicial construct. But, second and apart from that, the impact of the sentence, in terms of the role a criminal sentence has in society, did not serve its purpose which is to adequately show society’s condemnation of this behaviour and to deter others from doing the same thing.

“When you have a sentence like this,” Eng continued, “it is not enough for the judge to simply make strong findings that this was motivated by hate. The length of the sentence is disproportionate.”

Convicting and sentencing Middleton, however, also sets a precedent within rural Canadian communities where attacks on immigrant anglers have taken place. “Most people who carry out these activities are not just naïve, but believe that they will not be caught, or if they are caught, their community’s values will support them in what they did. Remember, [Middleton] was a motocross champion and was celebrated by his community. Often people think they can get away with this. The fact of a conviction, the fact of any custodial sentence at all, sends a strong message to the communities involved,” said Eng.

In terms of an institutional response, the reaction “has been disappointing by and large.” While York Regional Police set up a hotline specifically for attacks on anglers, the response by local politicians and the Ministry of Natural Resources, in whose name Middleton and his friends claimed to be acting by claiming they were enforcing fishing regulations, have been sub-standard.

“Their answer was to re-publish fishing regulations in Chinese. While ordinary individuals may or may not take a lesson from this, what is really disappointing is that ministries of government have not taken much of a lesson from this,” stated Eng.

“They have a role to play in both political leadership and the implementation resources, such as education, to try to prevent this from happening again.”

Eng believes that this case is far from over. “We’re asking that the sentence be appealed. Simply put, the length of the sentence is inadequate and disproportionate to the crime.”