TORONTO: A man from Ontario, Canada, who had been diagnosed with a delusional disorder with persecutory features, wrote “no more Muslims” in black pen on 15 bus stop benches. He was immediately charged with mischief.

Public mischief would normally be punished with a monetary fine and perhaps community service—such as being forced to clean graffiti from public property.

At trial the man admitted guilt and apologised.

He had not been charged with a hate crime, and prepared no defence against hate crime charges.

Nevertheless the judge said “even after the words are scrubbed away with a guilty plea, it leaves stains that may be more permanent, it does not matter that he wasn’t charged with a specific hate crime, because this was a hate crime disguised as mischief. [It] was both hateful and hurtful to the community and needs to be deterred.”

The judge went on to say, “What is plainly missing from the apology is any insight about his actions in choosing hateful words and any semblance of what effect his words would have on the community.”

The judge acknowledged that the accused’s mental health could have been a factor in his behaviour, “but I simply can’t be sure of this”, he concluded.

On 21 September 2017, the judge sentenced the man to five months in prison.

The result of the ruling was widespread coverage questioning the sentence. Judge Javed’s goal may have been to deter negative comments about a certain community. However, what he did by applying the law in an unusual fashion was to create yet more division.

In other words, the man was brought to court on one set of charges (mischief), yet sentenced for charges on which he was not being prosecuted and had not defended himself. This would be like being charged for robbery, tried for robbery, yet sentenced for manslaughter.

The name of the judge is Ferhan Javed. When he was appointed, the Ontario Court of Justice said he had previously been “a consultant to Muslim Family and Child Services of Ontario and is fluent in French, Urdu and Punjabi”.

Judge Javed’s decision that the mischief was a “hate crime” needing deterrence, combined with his prior consultancy work, may unfortunately give an appearance of bias. Judges are not supposed to “feel” strongly about an issue. If they do, they should recuse themselves, just as a potential jury member should.

The result of Judge Javed’s ruling was widespread coverage questioning the sentence, with one article even headlined: “Jail for graffiti, but not for rape: Canadian courts side with Islam”. Judge Javed’s goal may have been to deter negative comments about a certain community. However, what he did by applying the law in an unusual fashion was to create yet more division.

Canadians upset about this case have filed complaints with the Ontario Judicial Council. If anything should happen to such requests, it would probably fall under the purview of the Ontario Attorney General, Yasir Naqvi, who himself emigrated from Karachi to Canada in 1988.

Tom Paskal is an award winning American journalist, author and screenwriter.