COURT OF APPEAL FOR ONTARIO
Gillese J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Khamea Louangrath
Applicant
Samuel Walker, for the applicant
Mabel Lai, for the respondent
Heard: December 2, 2014
On application for judicial interim release pending the appeal from the convictions entered on March 5, 2014,1 by Justice Catherine Aitken of the Superior Court of Justice, sitting with a jury.
1Following a jury trial, Khamea Louangrath (the “applicant”) was convicted of assault causing bodily harm and two counts of forcible seizure. For these offences and a further conviction for assault, to which he had pleaded guilty, he was sentenced to three and a half years in prison, with credit for 202 days of pre-trial custody at a rate of 1.5 to one.
2The applicant has filed a notice of appeal in which he appeals against conviction and seeks leave to appeal against sentence. Before this court, he applies for release from custody pending the determination of his appeal.
3The Crown opposes the application, contending that the appeal is frivolous and that the applicant’s detention is necessary in the public interest
4For the reasons that follow, I would dismiss the application.
FACTS IN BRIEF
5The offences in question took place on April 23, 2011. They occurred while the applicant was serving a conditional sentence for one count of possession for the purposes of trafficking.
6The applicant thought – wrongly – that the two male victims had damaged his car. The applicant gathered eight or nine other men and surrounded the two victims on the dance floor of a night club. They grabbed the two men and forced them into a back alley. One man was pushed against a brick wall and the other was pushed towards a chain link fence.
7The applicant began punching the man against the brick wall in the head and face, while others in the group restrained the victim’s arms, making it impossible for him to defend himself. With every punch, the victim’s head snapped backwards, hitting the wall.
8One of the applicant’s companions “sucker punched” the man being held against the chain link fence. Other men in the group proceeded to beat the second victim, punching and kicking him while he was on the ground trying to protect himself.
9The attack on the two men only ended when a bouncer from the nightclub forced the attack to stop.
10The applicant’s assault convictions related to the first victim, who suffered significant bodily harm. His lower jaw was broken in two places. It had to be completely immobilized with wires and metal arch bars in a surgery that lasted over two hours. His jaw remained wired shut for six weeks. He suffered mild neurocognitive disorder due to traumatic brain injury, post-traumatic stress disorder, and a major depressive disorder. As a result of the brain injury, his brain functioning has been permanently impaired. He has a reduced ability to concentrate, understand and retain information, and multi-task. His brain impairment is a barrier to further academic study or advancement at work. He was forced to drop out of the academic program in which, until the attack, he had been excelling.
11In the words of the trial judge, “This was no minor scuffle”. It was a “vicious attack on a person who was overpowered by a group of men and given no opportunity to defend himself”.
12After conviction but before sentencing, the trial judge ordered that the applicant be taken into custody. She did so “primarily to maintain confidence in the administration of justice, but also for the protection of the public”.
13In assessing the need for protection for the public, the trial judge described the fresh charges of assault causing bodily harm and breach of recognizance arising from events that took place on July 3, 2013, in broad daylight, at the Calypso Water Park in Limoges. When the Calypso Water Park incident occurred, the applicant had been charged with the offences in question but not yet convicted. He was on bail and subject to conditions which included that he keep the peace and be of good behaviour.
14The trial judge was fully aware that the charges relating to the Calypso Water Park incident were unproven allegations. However, the trial judge pointed out, the existence of the Calypso Water Park allegations was concerning because of the similarities between them and what took place on April 23, 2011. The trial judge stated that the similarities between the two incidents – both of which involved a verbal altercation that quickly escalated into a group attack on defenceless strangers – raised concerns about the applicant’s “lack of control” and degree of “viciousness”. She expressed concern that a “rapid resort to violence” remained a method of operation for the applicant.
15The trial judge was concerned, based on the “short fuse and quite dramatic absence of control exhibited by [the applicant] on the evening of April 23, 2011”, about the risk that he posed on a day-to-day basis to others whom he perceived as crossing him.
16Accordingly, the trial judge revoked the applicant’s bail and ordered that he be taken into custody pending sentencing.
THE STATUTORY REQUIREMENTS FOR JUDICIAL INTERIM RELEASE
17Under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of a judge of this court that:
a. the appeal is not frivolous;
b. the applicant will surrender into custody in accordance with the terms of the release order; and
c. the applicant’s detention is not necessary in the public interest.
ANALYSIS
18The Crown contends that the grounds of appeal are so weak that the applicant has failed to show that the appeal is not frivolous. I do not agree. I am satisfied that the proposed grounds of appeal raise arguable issues. Consequently, the applicant has satisfied me that his appeal is not frivolous. Having said that, in my view, the grounds of appeal appear weak. It is important to note, however, that in assessing the strength of the appeal, I have relied on the record which, at this time, does not include the transcripts. Although the transcripts have been ordered, they are not yet available.
19The Crown concedes that the applicant has met the second requirement in s. 679(3). I agree.
20However, the applicant has not satisfied his burden in respect of the third element of s. 679(3), namely, that his detention is not necessary in the public interest.
21It is well-established that the public interest requirement in section 679(3)(c) involves the competing considerations of reviewability and enforceability. As this court stated in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 113, the public interest requirement involves a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other.
22In this case, a balancing of those considerations leads me firmly to the conclusion that release pending appeal should be denied.
23The applicant has been convicted of very serious offences. I agree with counsel for the applicant that the convictions are not for the most serious of offences. However, they are marked by the degree of their violence and viciousness and the permanent serious consequences to the victim.
24Moreover, the applicant has demonstrated a lack of respect for court orders. In this regard, I point out that he committed the offences in question while he was serving a conditional sentence.
25Further, like the trial judge I am seriously concerned about the risk that the applicant poses to public safety. The outstanding charges which the applicant faces in respect of the Calypso Water Park incident show a troubling degree of similarity to those for which he was convicted. Like the trial judge, I am fully aware that the Calypso Water Park charges are unproven at this time. The trial on those charges is scheduled to take place in January 2015. Nonetheless, my concern for public safety is heightened by these outstanding, albeit unproven charges.
26Finally, while there was considerable argument directed at how long it would take before the appeal in this matter would be heard and what the effect of the sentence appeal would have on the applicant’s release date, in my view, it is highly unlikely that refusing bail would render the appeal nugatory, should release be denied. In this regard I would simply reiterate that on the record as it stands, the grounds of appeal appear weak and this assessment also holds true for the grounds raised in the sentence appeal.
DISPOSITION
27Accordingly, the application is dismissed.
28I would add that there are a number of considerations at play in my disposition that may be affected by changing circumstances, including the preparation of the transcript and the trial on the Calypso Water Park charges. Nothing in these reasons should be taken as limiting the right of the applicant to bring a fresh application for interim release based on a change in circumstance.
Released: December 8, 2014 (“E.E.G.”)
“E.E. Gillese J.A.”