The man accused in the Sep 27 alleged gaybashing of Jordan Smith arrived for his third court appearance Oct 14 to discover the charge against him had been upgraded to aggravated assault.

Michael Kandola, 20, sat quietly at the back of the courtroom, his hand shielding his face from the view of onlookers and media.

He would not comment on the charge as he left court, walking quickly to a waiting car while trying to dodge media cameras.

Smith, 27, was walking along Davie St hand-in-hand with another man when a group of four young men allegedly approached them, according to police.

The men allegedly screamed obscenities about the couple’s sexual orientation, then knocked Smith unconscious with a punch to the head.

Police say Smith fell to the ground at the corner of Davie and Hornby Sts.

His jaw was broken in three places and had to be wired shut to heal.

Police want the incident prosecuted as a hate crime because of the obscenities allegedly uttered before the attack.

“Fabulous,” says community activist Jim Deva when told of the new, more serious charge of aggravated assault. “I think that’s where it needs to be.”

The Centre’s executive director, Jennifer Breakspear, agrees.

“I’m pleased to see that the Crown is giving the situation the gravity it deserves,” she says.

“I hope the Crown is doing its due diligence so that we don’t see a hate crime designation fall through the cracks for any reason,” she adds.

Crown spokesperson Stan Lowe says the decision to upgrade the charge came as a result of a review of medical evidence in the case.

“Our decisions in these cases are always driven by the evidence available,” he says.

As for seeking a hate crime designation, Lowe explains that if the evidence suggests hatred played a part in the alleged assault, the Crown will introduce that evidence at trial. The Crown would then “invite” the court to consider that hatred as an aggravating factor at sentencing, if the accused is convicted.

According to the Criminal Code of Canada, a person convicted of a crime should get a stiffer sentence if there's evidence their actions were motivated by “bias, prejudice or hate” based on sexual orientation or other grounds.

Kandola returns to court Oct 27, possibly for arraignment on the charge, says Lowe. What happens after that depends on what plea Kandola enters at that time.

Kandola’s new bail conditions remain the same as before. He is to have no contact with the victim and stay out of the Davie Village area.

“Don’t prejudge the case,” warns Kandola’s lawyer Danny Markovitz. "Let’s wait and see.”

Markovitz says a tape of the incident from surveillance cameras at the 7-Eleven store at the corner of Davie and Hornby “isn’t exactly consistent with what the complainant is saying.”

Told of Markovitz’s comments about the videotape, Deva shrugs.

“That’s his job,” Deva says. “Create doubt.”

Vancouver Police Department spokesperson Insp John McKay has said the situation could have been worse had it not been for the intervention of witnesses who stopped and told the attackers they were calling the police.

“There’s no doubt in my mind that this assault was going to continue based on the behaviour they all said occurred,” McKay told reporters at a press conference Sep 28.

McKay says the group of alleged attackers fled but was found in an alley a block away.

Kandola was arrested and taken into police custody. There have been no other arrests related to the incident.