Accused’s lawyer admits it looks like his client punched Smith

The man charged with assaulting Jordan Smith on Davie St last September has had his preliminary hearing in Vancouver provincial court adjourned to Aug 6 due to lawyers’ scheduling conflicts.

Michael Kandola was to appear in court for the preliminary hearing Jun 10-11, but the Crown prosecutor handling the case is in a murder trial, says prosecutor Dasein Nearing who appeared on the Crown’s behalf.

Kandola faces one count of aggravated assault in connection with an alleged gaybashing in which he allegedly called Smith a “fucking faggot” and broke his jaw.

Nearing told Xtra West outside court Jun 10 that if the evidence brought out at trial warrants a hate crime designation “the Crown will pursue that quite vigorously.”

But, she stressed, that comes during the sentencing phase of the trial if Kandola is convicted.

“Let’s not put the cart before the horse,” she said.

Kandola had originally been charged with assault but the charge was upgraded to aggravated assault after a review of medical evidence.

Kandola’s lawyer, Danny Markovitz, told Xtra West outside court that while he’s still waiting for disclosure of more evidence, a videotape of the incident indicates Smith was felled by a punch from Kandola.

Smith underwent surgery after the attack to have his jaw wired shut so it could heal. It was broken in three places.

Smith, then 27, had been walking along Davie St hand-in-hand with another man when a group of four young men allegedly approached them, according to police.

The initial story was that the men allegedly screamed obscenities about the couple’s sexual orientation, then knocked Smith unconscious with a punch to the head.

Police say Smith fell to the ground at the corner of Davie and Hornby Sts.

Markovitz says he has seen a videotape of the incident seized by police from the 7-Eleven at that corner.

There’s no sound on the tape, he told Xtra West outside court, so any alleged slurs cannot be determined.

However, Markovitz says, it appears someone in Kandola’s group said something to which Smith may have taken offence.

Smith turned back, followed by his friend, Markovitz says the video shows.

“One single punch was thrown toward Mr Smith who fell immediately,” Markovitz says. “That punch appeared to be thrown by Mr Kandola.”

“A single punch,” Markovitz says. “That’s the sole punch to him or any act toward Mr Smith. There is video after that. There’s no suggestion that there’s any further violence toward Mr Smith.”

Smith says he was told the preliminary hearing would be adjourned.

He says he has not had a chance to see the video or discuss it with the prosecution.

“I’m going to have to sit down with the lawyers,” he says. “They’ve told me not to talk to anybody.”

Police have also said they want the incident prosecuted as a hate crime because of the anti-gay slurs allegedly uttered before the attack.

According to the Criminal Code of Canada, a person convicted of a crime should get a stiffer sentence if there’s evidence their actions were motivated by “bias, prejudice or hate” based on sexual orientation or other grounds.

At the time of the incident, Vancouver Police Department spokesperson Insp John McKay said the situation could have been worse had it not been for the intervention of witnesses who stopped and told the attackers they were calling the police.

McKay said the group of alleged attackers fled but was found in an alley a block away.

Kandola was arrested and taken into police custody. There have been no other arrests related to the incident.

Kandola was freed on bail after his arrest. He was ordered to have no contact with Smith and to stay out of the Davie Village area.

When the preliminary hearing does take place, a judge will determine if there is enough evidence to proceed to trial.

Evidence heard in preliminaries hearings and submissions relating to that evidence are banned from publication and cannot be reported by law.

The rationale behind the rule is that if the accused opts for a jury trial, prior publication of the evidence could taint the potential jury pool.

Once the trial begins, reporting can take place. Any evidence from the preliminary hearing deemed inadmissible at trial can be reported once all appeals have been exhausted in the case.

The Kandola case is one of two high-profile gaybashings currently before Vancouver courts.

Shawn Woodward was to appear Jun 18 for arraignment on charges of aggravated assault stemming from an incident at the Fountainhead Pub Mar 13.

A punch knocked Ritchie Dowrey, 62, backwards to the ground in that incident. Dowrey hit his head and suffered serious brain damage.

The suspect then left the bar and was pursued by other patrons who held him for police.

“He’s a faggot. He deserved it. I’m not a fag. The faggot touched me. He deserved it,” Woodward allegedly told witnesses after the incident.

However, the head of Vancouver police’s diversity policing section, Insp John de Haas, revealed at an anti-violence community forum May 2 that there may be “admissibility issues” with the evidence gathered so far in that case.

Three months later, Dowrey is still in the hospital with severe brain damage, barely lucid.

Lindsay Wincherauk was among Dowrey’s friends at the bar that night and continues to visit him in Vancouver General Hospital.

“He has no idea who we are. He has no idea who he is,” Wincherauk says. “Every once in a while he throws together a few words that make sense.

“He’s still got the same charm and humour about him.”

While Dowrey has always been on the slight side, Wincherauk says he’s down to about 85 pounds in weight.

“It’s tragic,” Wincherauk says. “He’s still there.

“Maybe there will be a miracle,” he adds hopefully.