DATE: 20010313

DOCKET: C33927

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE AND SIMMONS JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Clayton C. Ruby and Richard Litkowski for the appellant

Respondent

• and -

GIUSEPPE (JOE) PIETRANGELO

Appellant

C. Jane Arnup for the respondent

Heard: March 1, 2001

On appeal from the conviction by Justice Nick Borkovich dated September 10, 1999, and on appeal from the sentence imposed by Justice Nick Borkovich, dated March 3, 2000.

BY THE COURT:

[1] At the conclusion of the hearing of this appeal the court advised counsel of its decision to set aside the appellant’s conviction and find him unfit to stand trial. We advised that our brief reasons would follow. These are those reasons.

[2] The appellant was tried by a judge and jury on charges of attempted murder and assault with a weapon. He was convicted on September 10, 1999 and sentenced on March 3, 2000 to 25 years in prison for attempted murder and two years concurrent for assault with a weapon.

[3] The trial was a difficult one. The appellant adamantly insisted on acting for himself and throughout the trial displayed substantial signs of significant mental illness.

[4] In challenging his conviction, the appellant raises a number of arguments. Primary among them is that in the jury selection process the trial judge effectively removed the appellant’s right to raise a challenge for cause on the basis of pre-trial publicity. The Crown takes a contrary position. We agree with the appellant and on this basis would set aside the conviction.

[5] For its part, the Crown argues that the conviction should be set aside because in the face of ample evidence that the appellant was unfit to stand trial, the trial judge failed to direct a trial of the fitness issue. While the appellant disputes this, we agree with the Crown and on this basis as well would set aside the conviction.

[6] We turn first to the jury selection issue. Despite his difficulties in comprehending the real issues at stake in his trial, the appellant made it very clear to the trial judge that he wanted to question potential jurors about several subjects, including whether they had been influenced in any way by pre-trial media publicity. There had been a great deal of media coverage of this incident because it was the alleged attempted murder of the local mayor. Indeed, the Crown expressed its own concerns about bias because of all the media reports but proposed that this be dealt with by a general question addressed to the entire jury panel rather than the challenge process provided in the Criminal Code and the trial judge followed this suggestion. In response to his request that any jurors come forward if they had seen any publicity that might have influenced their ability to determine the issues impartially, several potential jurors did so and were excused.

[7] In our view, by proceeding in this way the trial judge effectively denied the appellant the right to challenge for cause. The trial judge’s statutory power to excuse jurors under s. 632(c) of the Code cannot foreclose a challenge for cause where proper grounds exist for that challenge. In the circumstances of this case the impact of the pre-trial publicity on prospective jurors could only be determined by the individualized inquiry contemplated by the challenge for cause provisions in the Code. The concern over the impact that the media coverage might have had on any potential juror was real: the media coverage had been significant; the Crown had expressed concern that this possible source of bias be dealt with; and in response to the general question posed by the trial judge several jurors came forward. The appellant was entitled to have his concern about non-indifference based on pre-trial publicity dealt with by means of the challenge provisions in the Code. See R. v. Sherratt (1991), 1991 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.) at 210.

[8] As this court has said repeatedly, such an error warrants a new trial. See, for example, R. v. Zundel (1987), 1987 121 (ON CA), 31 C.C.C. (3d) 97 (Ont. C.A.).

[9] Turning to the failure to hold a fitness hearing, it is true that nine months earlier, in December 1998, the appellant was found fit to stand trial. However, in our view, from the beginning of his trial the appellant exhibited conduct which required a fitness hearing.

[10] In discussions in court before any witnesses were called the appellant indicated his intention to call the “entire body of the City of Niagara Falls” as witnesses. When told he could not do so the appellant demanded to be taken back to jail so he could “take this matter under the ground”.

[11] The appellant continued to assert that he was there to deal with problems he, and his late father and mother had had with the municipality. In particular, he viewed his role in the process to be to defend his father and mother and to get his father’s will obeyed. He indicated that he would not participate in the trial or cross-examine the Crown’s witnesses until his own witnesses had come to court and his father’s will was brought to court. After making this clear, his involvement in the trial essentially ended.

[12] At the end of the evidence in chief of the Crown’s first witness, the Crown said this:

Your Honour, I don’t think we are going to have any sort of meaningful trial here for the next while. Mr. Pietrangelo has made it quite clear that he doesn’t think the trial is starting, or he’s not going to participate until such time as his witnesses, who may or my[sic] not have been served, are here. I think it’s obvious from the court’s comments that the court now understands the nature of the defence in this matter, which very well may not be related to the charges. We can go on and continue and call further witnesses and may be left with exactly the same problem we have today. What the court may wish to consider, at least overnight, is whether or not we should be trying an issue as to his fitness to stand trial and my understanding now is that it would be a matter that the jury would have to decide, before it hears any other evidence and, if he’s found fit to stand trial under the parameters of R. vs. Taylor then on we go. If he’s not, that’s the end of it. I leave it for your consideration Your Honour.

[13] The response of the trial judge was to ask the appellant whether he was fit to stand trial. When the appellant answered affirmatively, the trial judge simply indicated that the trial would proceed, but would not be thwarted by any tactic such as the appellant’s refusal to cross-examine because his witnesses were not there.

[14] In our view, the trial judge erred in proceeding in this way. There was ample evidence before him by this stage to provide reasonable grounds to believe that the appellant was unfit to stand trial and particularly that he did not understand the nature or object of the proceedings. The trial judge should have directed that the issue of the appellant’s fitness be tried. Further, the trial judge was obliged under s. 672.24 of the Criminal Code to appoint counsel to represent the appellant. In these circumstances, since the trial proceeded with the real risk that the appellant was unable to understand the nature of the proceedings on account of mental disorder, the resulting conviction must be set aside.

[15] Turning to the question of remedy, the Crown asks that the court, having set aside the conviction, declare the appellant unfit to stand trial pursuant to s. 686(1)(d) of the Criminal Code. In support of this, the Crown tendered the report of a psychiatrist, Dr. John Bradford, dated October 20, 2000.

[16] Dr. Bradford’s report was the result of an assessment of the appellant’s mental condition ordered by this court on July 6, 2000 on application by the Crown. The report makes clear in unequivocal terms that the appellant is presently unfit to stand trial, unable to understand the nature and object of the proceedings and in need of treatment with anti-psychotic medication in order to be rendered fit.

[17] Mr. Ruby opposed the Crown’s request as he was instructed to do. However, he candidly admitted that he had no evidence to contradict or challenge Dr. Bradford’s report and no due process complaints about its preparation or its consideration by this court.

[18] In the circumstances, we conclude that the appellant’s conviction must be set aside and find that he is unfit to stand trial. Neither party asked that we hold a disposition hearing and we decline to exercise our discretion to do so. The appropriate disposition will be determined by the Review Board pursuant to Part XX.1 of the Criminal Code.

Released: March 13, 2001 “DD” “Doherty J.A.”

“S.T. Goudge J.A.”

“J. Simmons J.A.”