Michael Kandola claims the judge's ruling that his assault on Jordan Smith "was a crime motivated by hate against an identifiable group, namely homosexuals, is unreasonable and cannot be supported by the evidence."
(Jeremy Hainsworth photo)
The man convicted of gaybashing Jordan Smith in 2008 is appealing his conviction and its hate crime designation.
Michael Kandola pleaded guilty to assault causing bodily harm on March 31 and was sentenced on April 30 to 17 months in prison. Justice Joel Groves found the attack was motivated by hate.
Minus five months for time served, it meant Kandola would spend a year behind bars.
However, in documents filed in the BC Court of Appeal on June 24, Kandola is appealing his sentence on the grounds that it is "unreasonable and unfair in all of the circumstances" and that the credit given for time served while awaiting sentencing was incorrectly calculated.
Groves' finding that the assault "was a crime motivated by hate against an identifiable group, namely homosexuals, is unreasonable and cannot be supported by the evidence," Kandola claims in his appeal.
Smith and his boyfriend, Charles McKay, were walking up Davie St holding hands in September 2008 when they heard taunts of "Faggots!" and "What the fuck is this?" from a group of men behind them.
Kandola was caught on video sucker-punching Smith, who fell to the sidewalk unconscious, his jaw broken.
Kandola can also be seen in the video standing over the prone Smith screaming. Witnesses say he was yelling "fucking homo!" and "faggot!"
Groves called the assault "vicious" and "senseless."
"Hatred is a motivation in this crime," the judge ruled. "There is no other explanation for what happened on that date."
"Mr Kandola must know that his actions are not only contrary to the law but are abhorred by Canadian society," Groves added.
Kandola had originally been charged with aggravated assault but pleaded guilty to the lesser charge of assault causing bodily harm.
Kandola's notice of appeal contains multiple errors. To start, Kandola's name is spelled wrong. It is spelled Kondola.
It also lists the sentence as 27 months.
"Mr Kandola, I sentence you to a total period of 17 months incarceration. Recognizing credit for time served on a double-time basis, two-and-a-half months equalling five months, I sentence you, Mr Michael Kandola, to a further period of 12 months incarceration," are Groves' exact words in the ruling.
But the notice doesn't mention Groves. It refers to the BC Supreme Court sentencing judge as Justice MO MacLeon. There is no such judge.
It also lists the date of conviction as December 10, 2009, and the date of sentencing as May 8, 2009. Both are wrong.
The lawyer listed on the appeal notice is James Hogan of Richmond who is currently working on UN Gang and Bacon Brothers organized crime cases.
Hogan says it's his understanding that Kandola's former lawyer, Danny Markovitz, filed the appeal.
"That is not my handiwork," says Hogan. "I didn't file it."
Markovitz confirms he drew up the appeal and his office filed it. He could not explain the errors.
Hogan says he will file an amended notice of appeal to correct the mistakes.
But, he adds, he has not had time to read Groves' decision thoroughly enough in order to file an effective appeal notice.
Smith has also filed a civil suit against Kandola in New Westminster court.
The suit, filed on October 9, 2008, by Smith's father, Howard, a lawyer, alleges his son suffered jaw fractures, bruising and swelling to his head, a soft-tissue neck injury and injury to his foot and ankle as a result of the attack.
The suit seeks damages for pain and suffering. The elder Smith has said the damages could top $100,000.
Jordan Smith says Kandola has yet to file a statement of defence in the civil action.
Kandola can apply to be released pending the outcome of any appeal on his criminal conviction, but no release hearing date has been requested.