Seven years after it launched a costly racial hate prosecution against a group of Toronto skinheads, the Ontario Crown has learned an essential lesson: If you mean Gypsy, say Gypsy.
In upholding the skinheads' acquittal, the Ontario Court of Appeal said the Crown destroyed its own case by referring to Gypsies as "Roma" in the hope of not ruffling ethnic sensitivities.
Gypsies and Roma are not synonymous, the court declared, leaving the charges fatally flawed.
The ruling ends a sprawling case that began with predawn raids in 1997, and ultimately included 50 police witnesses, a half-dozen lawyers and several expert witnesses.
Legal proceedings consumed 50 trial days and two appeals.
"I think this is justice gone askew," said Bernie Farber, a spokesman for the Canadian Jewish Congress. "This is the kind of thing that causes ordinary citizens to roll their eyes. It's the definition of a technicality. It shows how far the judiciary has to go in understanding today's society. The law is an ass on this one."
However, defence lawyers David Gomes and Peter Lindsay said it was lunacy to prosecute a ragtag group who merely conducted a peaceful, if rather distasteful, protest against immigration policies.
"The protest was peaceful, it was small, and it was clearly organized at the last moment," Mr. Gomes said yesterday. He estimated that the entire case cost more than $1-million.
"The Crown proceeded -- at public expense -- to have the longest summary conviction trial I've ever been involved in," Mr. Lindsay added. "I've never seen one remotely like this."
The protest took place on Aug. 26, 1997. The skinheads paraded outside a Scarborough motel holding placards saying: "Honk if you hate Gypsies," "Canada is not a trash can," and "Your [sic]a cancer to Canada."
The motel often housed refugees from the Czech Republic, whose presence in Canada had recently been a major news item.
After the Attorney-General gave special consent to lay hate charges, police raided the skinheads' homes and seized material they hoped would prove they were motivated by racial hatred.
For almost three years, Mr. Gomes and Mr. Lindsay stayed quiet as the Crown prepared and presented its case. Then, they stunned the court by announcing they would rest their entire defence on the misidentification of Gypsies as Roma.
Whether or not the placards had directed hate at Gypsies, the lawyers said, they certainly did not direct hatred at Roma.
Mr. Gomes recalled the prosecution being thunderstruck. "Once we had spotted it [the error] it became apparent the Crown hadn't noticed this was a problem," he said. "It was a shock to them."
Mr. Farber disputed this version of events. He said the Crown believed that the defence was not planning to dispute the terminology. "They sucked in the Crown," he said. "She believed in her heart of hearts that they had had an understanding. They laid a trap."
Mr. Gomes denied the allegation. "I'm not sure where the Crown came up with that presumption," he said. "The term 'Gypsies' is much broader than Roma. The Crown operated on the presumption they are equivalent terms."
At any rate, Ontario Court Judge Russell Otter ruled in favour of the defence argument and refused to let the Crown amend the court documents.
"The term Gypsy, in its broadest sense, is often used to refer to people who lead a nomadic life," Mr. Justice Dennis O'Connor wrote in the 3-0 Court of Appeal ruling. "For many Roma, the term Gypsy conjures up unflattering or stereotypical images.
"We understand the Crown's concern for sensitivity," he said. "However, what seems to be common ground is that not all people who are referred to as Gypsies are, in fact, Roma."
He remarked that Judge Otter "should probably" have taken judicial notice of the term Roma being a rough equivalent of Gypsies, but that he had the right to make a judgment call on the point.
But Mr. Farber said the judiciary ought to be ashamed of itself.