Court of Appeal for Ontario

Date: 2003-05-26

Docket: C39040, C38594

Re: Her Majesty the Queen (Respondent) – and – Giuseppe (Joe) Pietrangelo (Appellant)

Before: Weiler, MacPherson and Cronk JJ.A.

Counsel: Joseph Di Luca, for the appellant Riun Shandler, for the respondent

Heard & Endorsed: May 7, 2003

On appeal from the dispositions of the Ontario Review Board dated June 19, 2002 and July 18, 2002.

Appeal Book Endorsement

[1] The Crown concedes that the fitness hearing before Forestell J. should have been conducted by a judge and jury under s. 672.26 of the Criminal Code. As it was not, the proceeding is a nullity.

[2] Pursuant to s. 672.78(1)(e) (and s. 686(6)) of the Code, the court sets aside the verdict of unfit to stand trial made by Forestell J. on June 19, 2002 and refers the matter back to the trial court for trial of the fitness issue before a judge and jury.

[3] In respect of the Ontario Review Board’s determination that the accused is unfit, dated July 18, 2002, that order is set aside as the matter is now to be heard by a judge and jury.