CITATION: R. v. Mends, 2008 ONCA 546
DATE: 20080115
DOCKET: C41794
COURT OF APPEAL FOR ONTARIO
DEPUTY REGISTRAR SANDRA THEROULDE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
LAWRENCE FRANK MENDS
Appellant
Delmar Doucette for the Appellant
Sandra Kingston for the Respondent
HEARD: DECEMBER 7, 2007
RELEASED: JANUARY 15, 2008
ENDORSEMENT
TAXATION OF THE FEES AND DISBURSEMENTS
The appellant filed an Inmate Notice of Appeal on May 12, 2004 against his conviction and sentence for first degree murder and aggravated assault and appeared from time to time before the Court during its Kingston sittings.
On June 15, 2005, Robert Goddard of the Correctional Law Project of Queen’s University, wrote the Court recommending that amicus curiae be appointed rather than counsel, given the complexity of the appellant’s case, and the ongoing difficulty communicating with and receiving instructions from the appellant. As Mr. Mends had to appear before the court on June 21, 2005, Mr. Goddard communicated with Breese Davies of Ruby and Edwardh who agreed to act as amicus if her schedule allowed and undertook that some other member of Ruby and Edwardh would act if she was unable to do so.
On June 21, 2005, Mr. Mends appeared before the Court, and the Crown concurred with Mr. Goddard’s recommendation. As a result, Ms Davies was appointed amicus. Ms. Davies, due to her unavailability, subsequently requested Delmar Doucette of Ruby and Edwardht to take carriage of this matter. On September 28, 2005 the court then appointed Delmar Doucette as amicus curiae as requested by Ms. Davies.
This is a case that involved one ground of ineffective assistance of counsel argued by the appellant on his own behalf on September 19, 2007. Mr. Doucette supported a limited aspect of the appellant’s argument and raised two additional grounds of appeal. The court heard argument by Mr. Doucette and the Crown and reserved judgment. On October 1, 2007, for reasons released that day, the Court dismissed the appellant’s appeal.
Mr. Doucette billed his work to the Attorney General though a series of twelve accounts. There was no dispute as to the number of hours worked or as to the disbursements paid. The only dispute was the appropriate hourly rate to be paid for the hours worked. Mr. Doucette has billed at two-thirds his private rate being $200.00 per hour up to December 31, 2006, and then a modest increase to $235.00 per hour thereafter. The Attorney General has paid at the Legal Aid rate.
On December 7, 2007, I heard submissions with respect to Mr. Doucette’s application and reserved my decision.
At the hearing of the taxation of fees and disbursements, Mr. Doucette submitted that there was no dispute with the amount of hours worked or the disbursements on the file as the case was a complicated case to which the Crown agreed. The communication with the appellant was extremely difficult and time consuming and Mr. Doucette commenced a series of meetings with the appellant which were necessary, as the appellant had numerous issues to discuss. Mr. Doucette not only answered the appellant’s questions but also focused the appellant’s disorganized thoughts so that he could put the appellant’s concerns before the court in an appropriate and coherent manner as well as assist the appellant to ensure that the oral submissions made by the appellant in court was also in an appropriate manner. Investigative work was necessary, and Mr. Doucette maintained a good trusting relationship with the appellant throughout the process. The court also recorded its appreciation for Mr. Doucette’s assistance in this difficult case in the reasons released.
With respect to the travel time, Mr. Doucette submitted that there were several trips to Kingston and wherever there was other work involved, only one half of the cost of travel time was billed. The dispute was the appropriate hourly rate for the hours worked and travel time.
The crown raised the issue that counsel was aware that the practice of the crown is to pay legal aid rates in such circumstances and yet Mr. Doucette accepted to take carriage of the file. The Crown also submits that the case was progressively less complex once the psychiatric issues were resolved.
Mr. Doucette submitted that all the work completed on this file was difficult throughout but became easier over time. However, Mr. Doucette, even though aware of the position of the crown with respect to payment at legal aid rates, accepted the file based on the decision of the Deputy Registrar in Barton, George and McKenzie.
Accordingly, I agree that the case was a complex and difficult one and do not feel that the hourly rates submitted by Mr. Doucette for his counsel work are unreasonable in the circumstances, given his general expertise and appellate experience in such matters. I do not consider that the increase in his hourly rate should not be recognized, given that it no doubt reflects the realities of the increasing costs in the private practice of criminal law and the fact that he has billed two-thirds of the amount of his private practice which reflects the public service aspect of appearing as amicus.
However, I take a somewhat different view with respect to travel time. I feel that in the circumstances all travel time should be billed at $100.00 per hour.
- I will therefore tax Mr. Doucette’s account for hourly work done at $200.00 up to and including December 31 2006, $235 for work done thereafter, and all travel time at $100.00.