DATE: 20020128
DOCKET: C35383

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – RAMKISHORE JAGESHUR (Respondent)

BEFORE:

GOUDGE J.A.

COUNSEL:

Beverly J. Wilton

For the appellant

Ravin Pillay

For the respondent

HEARD:

November 19, 2001

On appeal against the acquittal by Justice W. Lloyd Brennan on November 6, 2000 pursuant to the provisions of s.676(1)(a) and 696 of the Criminal Code of Canada.

E N D O R S E M E N T

[1] On November 19, 2001, this court appointed Mr. Olmsted as amicus curiae to be paid by the federal Crown and to represent the interests of the respondent on this appeal. The court also provided that if counsel could not agree on fees and disbursement I should give directions.

[2] The respondent was acquitted at trial and, although on bail on other charges, he has since fled the jurisdiction. Some $300,000 seized from him on his arrest on this matter is still being held under the Seized Property Management Act. The Crown has not sought to have these funds found to be either the proceeds of crime or offence-related property.

[3] The Crown’s position is that Mr. Olmsted should be paid by analogy to the provisions of s.684 of the Criminal Code. Given the traditional practice, this would normally mean paying Mr. Olmsted out of the public purse at a rate equivalent to the legal aid rate.

[4] Mr. Olmsted’s position is that the order of Justice Keenan, made pursuant to s.462.34 of the Code and pursuant to which he was paid at trial, should apply to his service as amicus.

[5] In my view, the problem with Mr. Olmsted’s position is that he is now amicus not the respondent’s lawyer and it is not the respondent who would be accessing the seized funds. I do not view s. 462.34 as being directly applicable to these circumstances.

[6] The problem with the Crown’s position is that Mr. Olmsted is appointed not under s. 684, but as amicus in circumstances where funds seized from the respondent remain.

[7] The interests of justice will be best served if, based on the jurisdiction of this court to point amicus, I order that Mr. Olmsted be paid for this appeal at a reasonable rate using the factors listed in s.462.34(5.2) of the Code and that the federal Crown recover this sum from the seized funds. I will tax Mr. Olmsted’s fees and disbursements on this basis following the appeal. Mr. Olmsted can use a junior for preparation but will receive only one counsel fee for the hearing itself.

[8] After the appeal is concluded, counsel may contact me to arrange for the taxation. In the meantime if further directions are required I may be spoken to.

“S. T. Goudge J.A.”