



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Louangrath, 2014 ONCA 880

DATE: 20141208

DOCKET: M44475 (C59488)

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.

Gillese
    J.A.:

[1]

Following 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.

[2]

The 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.

[3]

The Crown opposes the application, contending that the appeal is
    frivolous and that the applicants detention is necessary in the public
    interest

[4]

For the reasons that follow, I would dismiss the application.

FACTS IN BRIEF

[5]

The 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.

[6]

The 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.

[7]

The applicant began punching the man against the brick wall in the head
    and face, while others in the group restrained the victims arms, making it
    impossible for him to defend himself.  With every punch, the victims head
    snapped backwards, hitting the wall.

[8]

One of the applicants 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.

[9]

The attack on the two men only ended when a bouncer from the nightclub
    forced the attack to stop.

[10]

The
    applicants 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.

[11]

In
    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.

[12]

After
    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.

[13]

In
    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.

[14]

The
    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 applicants lack of control
    and degree of viciousness.  She expressed concern that a rapid resort to
    violence remained a method of operation for the applicant.

[15]

The
    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.

[16]

Accordingly,
    the trial judge revoked the applicants bail and ordered that he be taken into
    custody pending sentencing.

THE STATUTORY REQUIREMENTS FOR JUDICIAL INTERIM RELEASE

[17]

Under
    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
    applicants detention is not necessary in the public interest.

ANALYSIS

[18]

The
    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.

[19]

The
    Crown concedes that the applicant has met the second requirement in s. 679(3). 
    I agree.

[20]

However,
    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.

[21]

It
    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), 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.

[22]

In
    this case, a balancing of those considerations leads me firmly to the
    conclusion that release pending appeal should be denied.

[23]

The
    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.

[24]

Moreover,
    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.

[25]

Further,
    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.

[26]

Finally,
    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 applicants 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

[27]

Accordingly,
    the application is dismissed.

[28]

I
    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.





[1]
There is some discrepancy in the record as to whether the convictions were
    entered on March 4
th
or 5
th
, 2014.  I have used March 5
th
as that is the date given by the trial judge in her reasons for sentence and 
    her reasons given for revoking the applicants bail.


