The man charged with aggravated assaulted for allegedly breaking Jordan Smith’s jaw on Davie St last September will go to trial in BC Supreme Court, a provincial court judge ruled after a preliminary hearing Aug 6.
The accused, Michael Kandola, clad in a velvet black Versace hoodie, faded jeans and sneakers, spent much of the hearing fidgeting and staring downwards. At one point, he dropped a pack of cigarettes.
Judge Malcolm MacLean heard from two witnesses over the course of the morning hearing, which had originally been scheduled for two days.
Smith was holding hands with another man on Davie St Sep 27, 2008 when police say a group of men yelled homophobic slurs at the gay men. Kandola then allegedly punched Smith.
Police say they seized a video of the altercation at the Davie and Hornby intersection from the 7-Eleven.
Smith underwent surgery after the attack to have his jaw wired shut so it could heal. It was broken in three places.
Kandola’s lawyer, Danny Markowitz, told Xtra West in June that Smith was felled by a punch from Kandola.
The provincial court holds preliminary inquiries to determine if there is enough evidence to proceed to trial.
“There is enough evidence to commit Mr Kandola to stand trial,” MacLean ruled.
The case returns to court to set a trial date Aug 26.
The evidence presented during the preliminary inquiry and submissions related to the evidence cannot be published due to a publication ban.
The ban exists so that if the accused opts for a jury trial, the potential pool of jurors would not be tainted by prior exposure to the evidence through the media.
Markowitz says he hasn’t decided whether to elect trial by judge and jury or judge alone. That election could come later this month.
Once the trial begins, reporting can take place.
Any testimony heard in the preliminary hearing but not allowed at trial can be reported once all appeals have been exhausted in the case.
Outside court, Smith said he was pleased to see the case get underway.
“It’s dragged on a bit,” he says.
Kandola was originally charged with simple assault but that charge was upgraded to aggravated assault on a review of medical evidence.
The incident led to further calls from the gay community for the Crown to seek a hate crime designation if Kandola is convicted.
An accused is not charged with a hate crime. But if an accused gets convicted, the Crown can then seek a hate crime designation at sentencing for stiffer punishment. In order to seek the designation at sentencing, the Crown must present evidence that the incident was motivated by hatred against an identifiable group — such as gay people — at trial.
Crown spokesman Robin Baird says the prosecution will look closely at the alleged indications of hate motivation in this case.
“We take very seriously any case where there is motivation by hatred based on sexual orientation or on race,” he says.
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