COURT FILE NO.: 18-9404
DATE: 2020/02/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent
AND
MARIANGELA MAZZEI, Applicant
BEFORE: Aitken J.
COUNSEL: Stephanie Moore, for the Crown Respondent
Applicant, self-represented
HEARD: February 25, 2020
ENDORSEMENT
Nature of Proceedings
[1] On November 3, 2019, the Applicant, Mariangela Mazzei, filed a notice of appeal from both conviction and sentence imposed by Hoffman J. of the Ontario Court of Justice on October 3, 2019 and then November 1, 2019.
[2] The Applicant seeks an order under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, assigning a lawyer to act on her behalf on the summary conviction appeal. Crown counsel argues that no order should be made under s. 684 of the Criminal Code because the Applicant does not meet the financial requirements for such an order to be made.
[3] For the reasons that follow, the application under s. 684 of the Criminal Code is dismissed.
Section 684 of the Criminal Code
[4] Section 684(1) of the Criminal Code reads as follows:
684(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
[5] Under s. 684(1) of the Criminal Code, as a judge of the Superior Court of Justice to which Ms. Mazzei’s summary conviction appeal lies, I may assign counsel to act on her behalf on the appeal if I am of the opinion that it appears desirable in the interests of justice that Ms. Mazzei be given legal assistance and she does not have sufficient means to obtain that assistance.
[6] Before exercising my discretion to assign counsel for Ms. Mazzei, there are a number of factors I may consider:
• The merits of the appeal in terms of whether there is an arguable issue;
• The complexity of the issues raised on appeal, whether Ms. Mazzei can present the appeal without the assistance of counsel, and whether the court can decide the appeal without the assistance of counsel, taking into account:
o The grounds of appeal;
o The length and content of the record on appeal;
o The legal principles engaged; and
o The application of those principles to the facts of the case; and
• Ms. Mazzei’s age, education, ability to understand, and ability to express herself.
Analysis
Interests of Justice
[7] The Applicant must show that her appeal raises an arguable issue. It has been held consistently that the bar to showing that an appeal raises an arguable issue is a low one. Crown counsel concedes that the Applicant has met that bar in this case.
[8] The grounds of appeal advanced by Ms. Mazzei in her Notice of Appeal are as follows:
• The trial judge misapprehended the evidence at trial;
• The trial judge created a reasonable apprehension of bias by his conduct throughout the proceedings; and
• The trial judge made findings at the sentencing hearing not supported by the evidence.
[9] In explaining her grounds of appeal, the Applicant focuses on factual and evidentiary issues – issues in regard to which considerable deference is normally shown to the trial judge who heard oral testimony and had the opportunity to assess the credibility of witnesses. To succeed on an appeal of this nature, an appellant must show that the judge made a palpable and overriding error regarding a significant finding of fact.[^1] Similarly, there are strict limits on the ability of an appellant court to conclude that the conduct of a trial judge resulted in a reasonable apprehension of bias. The test for reasonable apprehension of bias is stringent, and positive findings of bias are very rare[^2]. Thus, although the Applicant has shown that there is an arguable issue on the appeal, the chances of success on the appeal are not high. Due to the stringent tests just referred to, it would be particularly helpful for the Applicant to be represented by counsel on the appeal.
[10] The Applicant advised that the trial in the Ontario Court of Justice lasted eight or nine days. That means that there will be a lengthy transcript to order and review. Not only will this result in significant costs to the Applicant in ordering the transcript, but also, it will require considerable time on the part of the Applicant to review the transcript and organize references in the transcript to support the grounds of appeal she is advancing.
[11] The Applicant is 36 years old. She has a B.A. in journalism. She is intelligent and articulate. She prepared a detailed Notice of Appeal with editorial help from her former lawyer. Although she had never represented herself in previous court proceedings, she has the skills to do so. Her only expressed limitations are that she suffers from PTSD which can result in her becoming emotional in stressful situations, and she is unfamiliar with court proceedings and legal vocabulary.
Financial Considerations
[12] The Applicant works full-time for a landscaping and construction company and earns $20 per hour. She normally works between 30 and 40 hours per week. She also receives $2,000-$3,000 per month from Doterra, a company that sells personal care and cleaning products and operates on a tiered marketing basis. The income is the result of the sales generated by the Applicant’s sales team. In addition, the Applicant sells some Doterra products directly to clients and she sells some household furniture and other items from time to time, all of which nets her, at most, $100-$200 per month. All of these sources of income would put the Applicant’s annual income in the range of $56,400 (taking all of the lowest numbers) to $79,968 (taking all of the highest numbers).
[13] Against this income, the Applicant has high monthly expenses:
• Rent of $800;
• Utilities of $4-500;
• Car of $600;
• Insurance of $200;
• Gas of $1,600;
• Board for her 3 horses of $800;
• Charitable donation of $25;
• Debt payments of $80 (minimal payment on $8,000 line of credit obtained to pay for legal fees for the Ontario Court of Justice case);
• Repayment of debt to parents; and
• Food, incidentals, veterinary bills, etc. not specified.
[14] Depending on exactly how much the Applicant is earning each month, she may not have sufficient income to meet the expenses outlined above, after payment of income taxes. However, as Crown counsel pointed out, not all of the above expenses can be categorized as necessities. Inherent in those expenses are some choices that the Applicant has made, such as owning a pick-up truck and the loan and gas expenses associated with it; and owning three horses and the boarding and veterinary expenses associated with them. Although the court recognizes that rescuing animals in distress or danger is an admirable and important cause, the Applicant’s choice to use her money in that fashion means that she does not have the resources to pay for legal services at this time. That does not mean that the public, in one form or another, should be made to pay for the cost of a lawyer for the Applicant when through a reorganization of her finances the Applicant would have the ability to pay a modest sum for legal expenses associated with the appeal. The summary conviction appeal would be argued in half a day or, at most, one day. The courtroom time would be considerably less than the time devoted to the trial.
Disposition
[15] For these reasons, the Applicant’s s. 684 application is dismissed.
Aitken J.
Date: February 25, 2020
COURT FILE NO.: 18-9404
DATE: 2020/02/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN, Respondent
AND
MARIANGELA MAZZEI, Applicant
BEFORE: Aitken J.
COUNSEL: Stephanie Moore, Counsel for the Crown Respondent
Mariangela Mazzei, self-represented
ENDORSEMENT
Aitken J.
Released: February 25, 2020
[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [^2]: See Halpin v. Thibault, 2019 ONSC 6879, at paras. 81-86, for a summary of the legal principles relating to a reasonable apprehension of bias.