A Brampton lawyer who defended former Toronto traffic cop Richard Wills in a notoriously drawn out murder case using court-ordered public funds says he is willing to take a battle over assessing his fees to the Supreme Court of Canada.
Raj Napal’s next step, however, is to file with the Ontario Court of Appeal a notice of motion for leave to appeal a Superior Court decision permitting the attorney general’s motion for a fee review.
“I believe that this precedent that Justice Lederer has set is extremely dangerous because it means that no defence counsel who is funded by the AG on a Fisher order will ever be able to be assured that their bill will not be second-guessed,” he says.
Napal says he has nothing to hide and is confident that an assessor will not reduce his fee “by even one cent.” He says he is appealing the decision as a matter of principle.
“The reason I’ve been holed up and hanged by the neck is because of the members of the public that only want to strip Wills for divesting himself of his assets,” says Napal. “I don’t think it’s members of the public, but the powers that be, they want to go one step further and try and make me a scapegoat. Well my name is Napal - always remember that - and I’m not going to let that happen to me.”
Napal and Toronto lawyer Munyonzwe Hamalengwa represented Wills during different stages of the murder case, which involved a June 2002 first-degree murder charge in the death of his lover Linda Mariani. Wills is serving a life sentence for the crime.
Napal billed the attorney general about $385,000 for the case, and has received about $345,000 of that. Hamalengwa billed for about $770,000, and has received $678,000. The Ontario government is pursuing a $1.2-million lawsuit against Wills and family members in a further move to recover legal costs from the case.
Hamalengwa consented to the fee review order and did not participate in the motion proposed by the attorney general to Superior Court Justice Thomas Lederer.
Lederer noted that it was not up to Legal Aid Ontario to pay for Wills’ defence, but rather the attorney general, through the Fisher order. He pointed out also that legal aid vetted the accounts related to the case, but that was done as “a courtesy to the court and the attorney general.”
However, Napal held that the attorney general “is without the standing necessary to bring this application,” the judge wrote. Napal suggested that authority on the matter stemming from the Solicitors Act is overpowered by orders made by Justice Bryan Shaughnessy, who granted the Fisher.
Napal argued he would have ceased the retainer if he had known the attorney general would try to review the budget, the judge wrote.
“To my mind, this misses the point,” said Lederer. “A budget is nothing more than an estimate of what may be spent. It is not an entitlement to spend the money without further justification. Although it may be the subject of the application Raj Napal sought to consolidate with this motion, there is no evidence before me that there was a contractual arrangement between Raj Napal and Legal Aid Ontario (Big Case Management).”
Lederer criticized Napal’s position that, “Counsel would be at peril of having his or her accounts reduced. The fear of this happening would ‘bring the whole criminal justice system to a grinding halt.’”
Said Lederer: “This sort of hyperbole is not helpful. It ignores how rare these orders are.” The judge ruled that the attorney general had standing to bring the motion, and granted it. Hamalengwa tells Law Times that he chose not to oppose the attorney general’s motion because he knew it would be granted.
“Knowing the Superior Court of Justice, they always have found in favour of the motions in favour of the attorney general,” he says. “So responding to a foregone conclusion is not how I want to spend my limited resources - financial, emotional, and legal. No judge on this kind of public interest case that originated in the political circles, and where you have an unsympathetic client like Richard Wills, after a political and media kerfuffle, would at this stage dismiss the attorney general’s motion.”
Hamalengwa says everything he did while working on the case was within his retainer. “Any assessor will have to read everything in order to properly come to assess how I conducted myself,” he says. “Anything short will not be justice at all.”