CITATION: R. v. Pietrangelo, 2008 ONCA 547

DATE: 20080703

DOCKET: C45112

COURT OF APPEAL FOR ONTARIO

DEPUTY REGISTRAR SANDRA THEROULDE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

GIUSEPPE PIETRANGELO

Appellant

Delmar Doucette for the Appellant

Allison Wheeler for the Respondent

HEARD: MAY 22, 2007

RELEASED: JULY 3, 2008

ENDORSEMENT

TAXATION OF FEES AND DISBURSEMENTS

1. The appellant filed an Inmate Notice of Appeal on March 27, 2006 against his convictions for aggravated assault and subsequently filed a supplementary notice of appeal on June 28, 2006 to include the sentences imposed.

2. The procedural history of this case is very convoluted. The appellant attacked the mayor of Niagara Falls with a cane and also menaced the mayor’s executive assistant when the assistant came to the mayor’s aid. The appellant was arrested and tried by a jury presided over by Mr. Justice N. Borkovich. The appellant, who suffers from a mental disorder, stated that he would not retain counsel and would represent himself. The appellant did not truly participate in the trial and the jury found him guilty of attempted murder on the mayor and an assault with a weapon on the mayor’s executive assistant. The appellant was then sentenced to 25 years of imprisonment for the attempted murder and 2 years imprisonment, concurrent, for the assault with a weapon.

3. The appellant appealed against conviction and sentence. On March 1, 2001, this court accepted the crown’s argument that the appellant, due to his mental disorder, had not been fit to strand trial and the appellant’s argument that he had been denied his statutory right to challenge jurors for cause. The court therefore allowed the appellant’s appeal against conviction, quashed the conviction, ordered a new trial and remitted the case to the Ontario Board of Review.

4. Many years had passed before the appellant was found fit to stand trial. There were several aborted attempts to commence a second trial, which ended in mistrials. The trial was before a jury presided over by Mr. Justice Hambly and the appellant again represented himself but did not truly participate in the trial. The appellant was found not guilty of an attempted murder, but guilty of an aggravated assault on the mayor, and guilty of an assault with a weapon on the mayor’s executive assistant. A sentence of 14 years imprisonment was imposed. Once again, an appeal was launched to this court against the conviction, and subsequently against conviction and sentence.

5. On February 14, 2007, the appellant appeared before the Honourable Justice Feldman, and informed her that he wished to represent himself. As a result of the appellant’s mental health history, he did not historically appear to be capable of properly representing himself, and upon request from the Crown, Justice Feldman agreed to appoint Mr. Doucette as amicus curiae to assist the Court in the circumstances.

6. The appellant did not wish to cooperate with any amicus, and requested that Mr. Doucette be removed as amicus. The Crown moved for directions and asked that Mr. Doucette be maintained in his role as amicus. However, the Honourable Justice Rouleau decided that the appearance of justice would best be served if a new amicus was appointed. As a result, Michael Lacy was then appointed. Mr. Doucette agreed to meet with Mr. Lacy to facilitate an orderly and efficient transfer of the file and to explain the relevant issues.

7. Mr. Doucette billed his work to the Attorney General through a series of three accounts at $235.00 per hour which is two-thirds of his private rate. The Attorney General has paid at the Legal Aid Rate at $92.30 per hour for work up to and including March 31, 2007, and at $96.95 per hour for work done thereafter.

8. On May 22 2008, I heard submissions with respect to Mr. Doucette’s application, made pursuant to s 684 (3) of the Criminal Code to fix the disputed fees, and reserved my decision.

9. At the hearing of the taxation of fees and disbursements, Mr. Doucette submitted, and the Crown agreed, that there was no dispute with the amount of hours worked or the disbursements on the file, as the case was a complicated case.

10. The communication with the appellant was extremely difficult, the records on this matter were dense and opaque and Mr. Doucette had to disentangle the various facets of the records in order to properly report to the Court. Communication with the appellant was extremely difficult as the appellant refused to speak with Mr. Doucette or any other amicus. Mr. Doucette, as a result, used the only sources for the appellant’s grounds of appeal that were available, which were his Notices of Appeal, and these were far from clear. In order to clarify the grounds, Mr. Doucette had to carefully and thoroughly review the entire record in order to interpret the grounds found in the Notices, and provide the best possible analysis of the relevant facts and legal issues. This was necessary not only to assist the appellant to make his self-represented arguments, but also to allow the Court to understand the appellant’s complaints and whether there was any merit to these complaints.

11. It was submitted that the case is a serious one due to the sentence imposed, which is the lengthiest sentence allowed by the Criminal Code other than a sentence of life imprisonment. An issue the Crown raised on the appeal was that the appellant should be found NCR. If the court agreed, the appellant will face an indeterminate term of hospitalization.

12. The crown submitted that when he agreed to take carriage of the file, Mr. Doucette was aware that the “policy” of the crown was to pay legal aid rates in such circumstances. 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 decisions in R. v. Barton, R. v. George, and R. v. McKenzie. In those cases, the deputy registrar held that the clear wording of s 684 (3) of the Code did not limit the fees paid to court appointed counsel or amicus curiae to the legal aid rate, or any other rate unilaterally determined by a policy of the Crown. Indeed the very wording of that provision supports a conclusion that the rate is to be agreed on by the parties or failing agreement, fixed by the registrar in consideration of the circumstances of each case.

13. Mr. Doucette billed at a rate of two-thirds of the amount of his private practice which is $235.00 per hour, which he submitted, reflects the public service aspect of appearing as amicus.

14. I agree that this 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 will therefore tax Mr. Doucette’s hourly rate, as requested, at $235.00 per hour and direct that the Attorney General pay Mr. Doucette’s fees in full.