ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-10657

DATE: 2014/03/10

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

KHAMEA LOUANGRATH
Respondent

Matthew Geigen-Miller, for the Applicant

David Anber, for the Respondent

HEARD: March 5, 2014

REVOCATION OF BAIL

Aitken J.

Nature of the Issue

[1] On March 5, 2014, after the jury had returned a verdict of guilty in regard to count one (assault causing bodily harm to Brad Morrice), count two (forcible seizure of Brad Morrice), and count three (forcible seizure of Tyler Fradette), and after Mr. Louangrath had pled guilty to count six (assault of Brad Morrice), the Crown applied under s. 523(1)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C.-46 for Mr. Louangrath to be detained pending sentence. After hearing further Defence evidence from a proposed additional surety, and hearing the submissions of both Crown counsel and Defence counsel, I ordered that Mr. Louangrath be taken into custody. In doing so, I agreed with Defence counsel’s assessment that this was a close decision. However, after giving careful consideration to the circumstances, the provisions in s. 515(10), and the jurisprudence, I decided this needed to be done, primarily to maintain confidence in the administration of justice, but also for the protection of the public. My reasons for doing so follow.

Serious Nature of the Offences

[2] On April 23, 2011, Mr. Louangrath and two friends arrived in a parking lot in the Market in Mr. Louangrath’s vehicle, a pick-up truck. They told three young men, Mr. Morrice, Mr. Fradette, and Mr. Mayfield, who happened to be standing in a parking space that Mr. Louangrath wanted to use, to get out of the way. Messrs Morrice, Fradette, and Mayfield refused, saying there were many other parking spots in the parking lot. They were waiting for another carload of friends who were to join them in the parking lot and then proceed to The Drink nightclub across the street to celebrate the birthday of Mr. Fradette’s girlfriend.

[3] Within moments, Mr. Louangrath’s passengers and then Mr. Louangrath jumped out of the truck and turned the confrontation from a verbal one to a physical one. Messrs Fradette and Mayfield tried to back away, saying they did not want to escalate matters. That didn’t work. Mr. Louangrath and his friends started punching. Mr. Morrice had been on his cell phone at the time. When he came over to see what was going on, Mr. Louangrath punched him in the face, splitting his lip. Mr. Louangrath and his friends then got into their vehicle and drove around the corner. Mr. Louangrath parked his truck in an available spot. Mr. Fradette followed the truck and saw that it was parked near another nightclub, Industry. In all likelihood, Mr. Louangrath had gone into that nightclub with his friends. Meanwhile, Mr. Mayfield called the police and made a report of the assault. Constable Diraddo arrived on the scene shortly thereafter. He noted that Mr. Morrice had been injured. He also saw the vehicle. He went looking for Mr. Louangrath and his passengers, but was not successful in locating them. He advised the young men that an investigation would be undertaken.

[4] Messrs Morrice, Fradette, and Mayfield, together with other friends who had arrived in the parking lot, proceeded into The Drink to continue the birthday party for their friend. Approximately 45 minutes later, Mr. Louangrath, together with three or four of his friends, and four bouncers from Industry, stormed into The Drink, looking for Messrs Morrice, Fradette, and Mayfield. The evidence suggests that, during the 45 minutes that had elapsed since the assault in the parking lot, someone had vandalized Mr. Louangrath’s truck, causing considerable damage. It is possible that the damage was done by someone who was in the group with Mr. Morrice and Mr. Fradette at The Drink, but it was not done by them. When Mr. Louangrath discovered the damage, he assumed that Messrs Morrice, Fradette, and Mayfield were the culprits. He recruited some bouncers from Industry and some of his friends to find the men and get revenge.

[5] Mr. Louangrath led the group of eight or nine men onto the dance floor at The Drink and surrounded Mr. Morrice and Mr. Fradette. Someone in that group, likely the Industry bouncers, grabbed Mr. Morrice and Mr. Fradette, pinned their arms behind them, and then forced them out the side door of The Drink into a back alley. Mr. Morrice was pushed up against a brick wall, and Mr. Fradette was pushed in the direction of a chain link fence. All of a sudden, one of the men with Mr. Louangrath gave Mr. Fradette a sucker-punch in the head. Mr. Louangrath started punching Mr. Morrice in the head and face, while other men restrained his arms, making it impossible for Mr. Morrice to defend himself. With every punch, Mr. Morrice’s head snapped back hitting the wall. There were many hard punches. They only stopped when Tim McCarthy, one of the security men from The Drink, insisted that the attack stop. When Mr. Morrice was let go by those pinning him to the wall, he collapsed to the ground. Meanwhile, a number of the other men in Mr. Louangrath’s group beat up Mr. Fradette, punching and kicking him while he was on the ground and trying to protect himself.

[6] When Mr. Louangrath was leaving the alley with the other men in the group, he said to Mr. McCarthy that he was sorry but that the two men had damaged his truck to the tune of $3,000 to $4,000.

[7] As a result of the beating Mr. Morrice suffered in the alley, he sustained significant bodily harm. His lower jaw was broken in two places, on the right and on the left. His jaw had to be completely immobilized with wires and metal arch bars in a surgery which lasted over two hours. His jaw remained wired shut for approximately six weeks. Further surgery was required to remove the wires and bars. The assault caused the following additional conditions: mild neurocognitive disorder due to traumatic brain injury, post-traumatic stress disorder, and a major depressive disorder. As a result of the brain injury, Mr. Morrice has a reduced ability to concentrate, to understand and retain information, and to multi-task. This is a barrier to further academic study or advancement at work. Mr. Morrice now suffers from a significant level of anxiety and depression. The impairment of Mr. Morrice’s brain function is permanent.

[8] At the time of the attack, Mr. Morrice was pursuing police studies at Algonquin College. He passed his year on the basis of the excellent work that he had done up to that point. In the fall of 2011, Mr. Morrice had to drop out of this program due to his inability to focus, concentrate, and remember – all symptoms that arose following the beating.

[9] This was no minor scuffle. This was a vicious attack on a person who was overpowered by a group of men and given no opportunity to defend himself. It is an attack that will have a lasting impact on his life.

[10] In sum, at this point, Mr. Louangrath has been convicted of one crime of violence and has pled guilty to another. Both reflected outbursts of rage. The first was an explosion of violence in response to a petty and avoidable disagreement. The second was a planned exercise in revenge and vigilantism, with no attempt at other methods of resolving the conflict, no attempt at proportionality of response, and no concern about the outcome for Mr. Morrice.

Jeopardy that Mr. Louangrath Faces

[11] Assault causing bodily harm carries a maximum sentence of 10 years. Although I am not suggesting that the offences I have just described would warrant a maximum sentence, I note that offences of this nature are taken seriously in the Criminal Code and by the courts. In fact, pursuant to s. 742.1(e), a conditional sentence is not available for Mr. Louangrath because he has been convicted by way of indictment of an offence that caused bodily harm for which the maximum period of imprisonment is 10 years. Thus, a period of incarceration is predictable and can run into a number of years – especially where the attack was planned, as was the case here.

[12] Now that a conviction has been registered, the jeopardy that Mr. Louangrath faces is greater than it was before.

[13] As well, Mr. Louangrath is not a first-time offender. He has a conviction dated October 15, 2010 from Brockville relating to possession of a schedule II substance for the purpose of trafficking for which he received a nine-month conditional sentence and a mandatory weapons prohibition order for life. The offences relating to April 23, 2011 happened when Mr. Louangrath was still subject to the conditional sentence order.

Outstanding Charges

[14] What is particularly concerning is that Mr. Louangrath is now facing, in L’Orignal, additional charges of assault causing bodily harm and breach of recognizance arising from events which occurred on July 3, 2013 at the Calypso Water Park in Limoges – a place where families and individuals of all ages go to relax and have fun. The alleged offence occurred in broad daylight in an area where there were children. On this date, Mr. Louangrath was subject to the conditions in his recognizance relating to the offences in this trial; namely, that he keep the peace and be of good behaviour.

[15] It is alleged that Mr. Louangrath and a group of his friends attended the water park to celebrate Mr. Louangrath’s birthday. It is alleged that one of his friends, Paolo Massina, made a sexually inappropriate comment about the fiancé of Mohamed Zeineddine. Mr. Zeineddine’s nephew asked Mr. Massina not to make a scene. Mr. Massina became confrontational and punched the nephew in the head. At this point, the nephew was surrounded by several men and Mr. Louangrath and Mr. Bui were subsequently identified as being in this group. Mr. Zeineddine tried to stop the ensuing assault, but was punched by a man later identified as Shaun Wheeler and was then punched by a man later identified as Mr. Louangrath. It is alleged that a number of males involved in the assault on the nephew and Mr. Zeineddine pulled Mr. Zeineddine onto his back, and Mr. Massina threw him down a flight of 15 stairs causing injury to his back and head. The allegation is that the males involved were kicking him in the head and ribs as he lay defenceless on the ground trying to protect his head.

[16] By this point, Mr. Zeineddine’s nephew was being punched and kicked by a number of men while he was on the ground. Mr. Louangrath and Mr. Massina were both identified as being members of this group. Mr. Zeineddine’s 13-year old niece tried to intervene to help her brother. It is alleged that she was punched in the face by Mr. Bui, sending her to the ground, bleeding around her eye. Mr. Louangrath was also identified as running to get more people to assist with further assaults.

[17] Mr. Zeineddine tried to flee to the entrance of the park, but was followed by another of Mr. Louangrath’s friends, Jamie Crowder. The police were called. Mr. Crowder and Mr. Bui tried to flee the scene but were detained by the police. In September 2013, Mr. Louangrath was charged with assault causing bodily harm and breach of conditions in regard to these events.

[18] These are just allegations at this stage. A trial is pending. However, the existence of these allegations is of concern.

[19] First, Mr. Louangrath’s girlfriend of four years, Alexandra Murka, confirmed that it was Mr. Louangrath’s birthday on July 3, 2013. He had wanted to go out to celebrate, but Ms. Murka had could not join him because she was working. Mr. Louangrath was angry about this and they argued. As far as she was aware, he went out with his friends that day. She confirmed that Mr. Massina and Mr. Crowder were friends of Mr. Louangrath at that time. Subsequently, although Mr. Louangrath denied that he had been involved in the assaults, he did not deny that he had been at the Calypso Water Park with his friends. Second, the description of the gang beating of strangers after a brief verbal interaction is eerily reminiscent of the events in the parking lot near The Drink when Mr. Louangrath and his friends turned a verbal argument into a physical attack within moments. Third, the fact that there was a group of men viciously assaulting a man and his young nephew and niece, who had no chance to defend themselves, is very similar to what happened in the alley behind The Drink. The similarities between what happened on April 23, 2011 and what happened on July 3, 2013 raise concerns that the lack of control and viciousness exhibited by Mr. Louangrath on April 23, 2011 may not be an isolated event, and the rapid resort to violence may remain a method of operation of Mr. Louangrath.

Options for Continuation of Bail

[20] Mr. Louangrath has been living in the community, with minimal bail restrictions, for almost three years. He has no outstanding charges, aside from those outstanding in L’Orignal.

[21] Mr. Louangrath currently resides with his parents in Ottawa and works full-time for a car dealership. His girlfriend, Ms. Murka, spends most of her time at the Louangrath home, despite having her own apartment. She works full-time as the manager of a retail store in Orleans. Her work schedule is such that she works either from 8:30 a.m. to 5:00 p.m. or she works from 12:30 p.m. to 9:30 p.m. Mr. Louangrath picks her up from work every day. One of the reasons why Ms. Murka stays so frequently with Mr. Louangrath is that she suffers from panic attacks, and she feels more secure when with Mr. Louangrath.

[22] Ms. Murka was put forward as an additional surety for Mr. Louangrath. Another gentleman agreed to be a surety for Mr. Louangrath when he was released on bail in regard to the L’Orignal charges. Defence counsel suggested that Mr. Louangrath post a $5,000 bond and that Ms. Murka post a bond of $4,000. At this time, Ms. Murka’s income is $37,000 and she has savings of $1,000. She would not be in a position to pay $4,000.

[23] There are a number of problems with Defence counsel’s proposal of Ms. Murka as a surety. It was obvious from Ms. Murka’s evidence that, despite feeling close to Mr. Louangrath, he is not open and forthcoming with her about what is happening in his life when he is not in her company. She only found out about the events that led to these convictions when Mr. Louangrath was charged with the offences in July 2011. She only found out about the details of the outstanding charges in L’Orignal during the course of the bail revocation hearing on March 5, 2014. Ms. Murka had been aware of the charges in L’Orignal after Mr. Louangrath was charged, but she had no further information about them. When she questioned Mr. Louangrath as to whether he was involved in the criminal behaviour at the Calypso Water Park, he denied any involvement but did not deny his presence there. Although, at one point in her testimony, Ms. Murka said that Mr. Louangrath had had friends of which she did not approve, that was prior to her meeting him six years ago. Later in her testimony, she advised that, since the summer of 2013, Mr. Louangrath has no longer been friendly with Messrs Crowder and Massina, two friends also implicated in the assaults at the Calypso Water Park. She implied that she did not approve of them either. It is reasonable to infer from her evidence that Mr. Louangrath has a double life – one that he shares with her and that is law-abiding and productive, and another that he shares with some friends and acquaintances and that is not always law-abiding. Mr. Louangrath does not give Ms. Murka a window on those other activities.

[24] I accept Ms. Murka’s evidence that she does not participate in the unlawful activities that some of Mr. Louangrath’s friends get involved with. I cannot accept her judgment that Mr. Louangrath does not participate in any of these activities – he has been convicted of four offences during the course of this trial. She seems to have her own view as to whether or not he should have been convicted, though she did not elaborate as to why. I also cannot accept her opinion that, if Mr. Louangrath were to be involved in such matters in the future, she would find out about it and would report it to the police.

[25] First, as she readily admitted, Mr. Louangrath has not been forthcoming with her in terms of telling her about activities which have resulted in criminal charges at the time of, or shortly after, their occurrence. She acknowledged that she has to ask questions about events in order to get any answers. But, of course, one does not necessarily know when to ask questions or what questions to ask. Second, Ms. Murka is somewhat dependent on Mr. Louangrath. She spends most nights in his home, she relies on him to get her to and from work, and she relies on him to help her cope with her panic attacks. Although the risk of losing $4,000 is a powerful incentive to keep the police informed of any breach of bail conditions on the part of Mr. Louangrath, these other factors are also strong incentives working in the direction of not letting the police know about any transgressions of Mr. Louangrath’s bail conditions.

[26] There is the further difficulty of crafting clear and effective bail conditions. One important condition would be a restriction on those individuals with whom Mr. Louangrath could interact when not at work. In that the members of the group that forcibly seized Messrs Morrice and Fradette, and then assaulted them, have remained nameless and unidentified, a condition could not be included in the release order preventing Mr. Louangrath from associating with them. The same could be said in regard to those members of the group who allegedly assaulted Mr. Zeineddine and other members of his family at the Calypso Water Park who remain unnamed and unidentified.

[27] There is the additional concern about how to keep the public safe in regard to someone who has such a short fuse when faced with a verbal confrontation. What happened in the parking lot near The Drink is an event that could happen any day of the week in any public place with a perfect stranger. It could happen on the highway. It could happen at a shopping centre. It could happen anywhere. Ms. Murka testified that Mr. Louangrath does not have an anger management problem – an opinion which is unsustainable in light of the events of April 23, 2011. It reduces Ms. Murka’s effectiveness as a surety if she does not recognize a problem that contributes to Mr. Louangrath committing criminal offences.

[28] Ms. Murka opined that a curfew from 10:00 p.m. to early morning would be ideal. It may be ideal from the point of view of Mr. Louangrath picking up Ms. Murka from work; however, it would do nothing to protect the public from Mr. Louangrath’s activities otherwise when not at work. The outstanding charges in L’Orignal arose from events that occurred around the dinner hour, in broad daylight.

Primary Grounds for Detention (s. 515(10)(a))

[29] Despite the increased jeopardy that now exists as a result of Mr. Louangrath’s convictions, I see the primary grounds for detention as playing an insignificant role on this application. Mr. Louangrath has a stable place of residence in Ottawa; namely, with his parents. He has been working for the same employer for seven years. He has had the same girlfriend for the last four years. She has stable employment in Ottawa. Mr. Louangrath faithfully attended the trial, was never late, and conducted himself appropriately while in court.

Secondary Grounds for Detention (s. 515(10)(b))

[30] Considering the short fuse and quite dramatic absence of control exhibited by Mr. Louangrath on the evening of April 23, 2011, I am concerned about the risk he poses on a day-to-day basis to others whom he perceives as crossing him. That concern is particularly alive when he is with friends who are equally comfortable with resorting to violence to solve problems. The friends he was with on April 23, 2011 have not been identified. Therefore, Mr. Louangrath’s association with them cannot be controlled. As well, his potential victims cannot be named, as Mr. Louangrath committed his offences against strangers whom he came across in a public place. The other outstanding charges against him arise from similar circumstances.

Tertiary Grounds for Detention (s. 515(10)(c))

[31] The tertiary grounds are of greatest concern. The Crown’s case has been proven in regard to four offences. The assault causing bodily harm inflicted on Mr. Morrice was particularly serious and caused him not only immediate physical damage requiring surgery and a long period of recovery, but also lasting neurological and psychological impairments. That the offence was carried out in a public space by a large group of men against two, defenseless young men who, moments before, were dancing with their friends at a birthday celebration, is shocking, and would cause fear in any parent whose young adults go out with their friends for some fun on a Saturday night. The public’s concern would be heightened further by the outstanding charges against Mr. Louangrath which, albeit unproven, also relate to what, ostensibly, is an unprovoked group attack in a public place on strangers who cannot defend themselves. With the potential for a lengthy prison sentence as a result of the offences for which Mr. Louangrath has been found, or has pled, guilty, in my view, it would undermine the public’s confidence in the administration of justice if he were allowed to remain in the community pending sentence.

Disposition

[32] For these reasons, the Crown has persuaded me that there is cause, at this time, to revoke bail and to take Mr. Louangrath into custody pending sentencing. The sentencing hearing is scheduled for April 3, 2014 at 9 a.m., by which time it is anticipated that a pre-sentence report will be available.

[33] Until further court order, Mr. Louangrath is prohibited from any contact, direct or indirect, with the following individuals: Rony Kiwan, B. Bainbridge, Brad Morrice, Tyler Fradette, Tim McCarthy, Evan Mayfield, Stephen Street, and all of the individuals named in the recognizance pursuant to which Mr. Louangrath was released following charges relating to the assaults at the Calypso Water Park in Limoges.

Aitken J.

Released: March 10, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

KHAMEA LOUANGRATH

Respondent

REVOCATION OF BAIL

Aitken J.

Released: March 10, 2014