COURT OF APPEAL FOR ONTARIO
Gillese J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Mark Staples
Applicant
Michael Lacy and Marco Sciarra, for the applicant
Lorna Bolton, for the respondent
Heard: April 12, 2016
ENDORSEMENT
1This is the application of Mark Staples (“Mr. Staples” or the “Applicant”) for appointment of counsel pursuant to s. 684(1) of the Criminal Code.
OVERVIEW
2On November 28, 2014, Mr. Staples was convicted of two counts of first-degree murder in relation to the deaths of his father, William Staples, and his sister, Rhonda Borelli. He was sentenced to life imprisonment with parole ineligibility of 25 years. He appeals against conviction.
3Mr. Staples’ application to Legal Aid Ontario (LAO) to fund his appeal was refused on the basis that he failed to make complete financial disclosure. He now applies to this court for the appointment of counsel under s. 684(1). The Crown opposes the application.
4The Applicant has not been clear and transparent in disclosing his financial circumstances or in the conduct of his personal financial affairs. Consequently, in my view, he has failed to meet his burden under s. 684(1) and the application is dismissed.
BACKGROUND IN BRIEF
Events Leading to the Convictions
5The victims were last seen on January 16, 1998. Their bodies were located inside William Staples’ truck at a parking lot near Pearson International Airport in Mississauga on June 8, 1998. Because of the advanced state of decomposition of the bodies, a precise cause of death could not be determined for Rhonda Borelli. William Staples died from blunt force trauma. An autopsy revealed that he had sustained 140 skull fractures.
6The Applicant was arrested in June 2010, some twelve years after the murders.
7On May 9, 2011, he was released on a recognizance of bail in the amount of $170,000, with four sureties. The Applicant pledged $100,000 under the terms of that recognizance. Paul Mazza acted as a surety in the amount of $50,000.
8Under the terms of the recognizance, the Applicant was prohibited from communicating with any witnesses at trial, with the exception of Mr. Mazza and Nella Bradt, whom the Applicant described as his common law spouse.
9The Applicant’s trial before a judge and jury took place in the fall of 2014. The Applicant did not testify at trial.
10The Crown’s theory was that the murders were motivated by a combination of anger and greed. At the time of the victims’ deaths, the Applicant was seriously in debt and his father was refusing to give him any more money. By murdering both his father and sister, the Applicant became the sole beneficiary of his father’s sizeable estate.
11Mr. Mazza, who had acted as legal advisor to the executor of William Staple’s estate, was called as a Crown witness. Mr. Mazza testified that the Applicant received approximately $1.4 million from his father’s estate.
12During his trial testimony, Mr. Mazza was asked about his relationship to the Applicant. He conceded that he was the Applicant’s surety and long-time friend, and that he had acted as the Applicant’s lawyer in civil matters in the past.
13The defence theory at trial was that the alleged motive to kill was weak. Although the Applicant had been suffering financial difficulties at the time of the murder, he could have dealt with them by declaring bankruptcy, which he did ten days after the victims disappeared. The defence suggested that the victims had been kidnapped by unknown assailants from the farm where they lived, at 11:30 p.m. on January 16th (when the Applicant was at work), murdered elsewhere, and their bodies had then been taken to the airport parking lot in William Staples’ truck.
The Applicant’s Property
14In 2006, the Applicant bought a house located at 96 Creighton Road in Dundas, Ontario (the “Property”) for $329,000. The Royal Bank registered a mortgage against it for just over $320,000.
15On September 25, 2012, the Applicant placed a second mortgage on the Property in favour of Mr. Mazza in the amount of $75,000. The mortgage had an interest rate of 0%. The sole term of the mortgage was that it was payable upon demand and, once demand was made, interest would accrue at a rate of 10% per annum.
Funding for Legal Counsel at Trial
16The Applicant’s application to LAO for the funding of his defence at trial was denied on financial grounds.
17In April 2013, after being denied legal aid, the Applicant filed a Rowbotham application. The documents filed in support of that application showed the assessed value of the Property at that time to be between $425,000 and $450,000 and, given the location and lot size, the price likely fell at the higher end of that range. The market value assessment was performed by one of the Applicant’s other sureties, Nils Foss.
18The Applicant withdrew his Rowbotham application after he reached an agreement, effective October 19, 2012, with the Ministry of the Attorney General (the “Attorney General”) for the funding of his defence (the “Agreement”).
19The Attorney General did not recognize the Applicant as indigent and never agreed to fund his legal representation. Rather, under the terms of the Agreement, the Attorney General agreed to compensate the Applicant’s trial lawyers on the same basis as if there were a legal aid certificate in place and the Applicant agreed to repay the Attorney General over time.
20The terms of the Agreement obligated the Applicant to promptly advise the Attorney General of all changes to his financial circumstances. The Applicant also agreed to
contribute the full and actual cost of legal services paid by the [Attorney General] pursuant to this Funding Agreement towards the cost of his defence, estimated by Victor Giourgas and Marco Sciarra at up to $500,000, payable to Legal Aid Ontario in a one-time initial payment of twenty-five thousand dollars ($25,000.00) made on or before June 1, 2013 and monthly instalments of two thousand dollars ($2,000.00) per month, on the first of every month beginning May 2013.
21The Applicant further agreed that as security for the debt, he would place a charge on the Property, in the amount of $300,000, in favour of Her Majesty the Queen in Right of Ontario. That charge was never registered.
22The parties to the Agreement agreed that its terms should remain confidential and not be disclosed by any party “except as required by law”.
Disposition of the Property
23The Applicant was convicted at the end of November 2014.
24By March 2015, Mr. Mazza had obtained a default judgment from the Superior Court allowing him to foreclose on the Property. The Applicant did not contest the foreclosure proceedings and made no request for sale of the Property.
25As a result, Mr. Mazza obtained title to the Property for the equivalent of $322,000 – slightly less than the Applicant had paid for the Property when he purchased it 9 years earlier and over $100,000 less than the assessment value of the Property in April 2013. (According to the application to the Land Registrar made following the default judgment, Mr. Mazza assumed the remaining sum owed to the Royal Bank on the first mortgage, which by then was $247,000).
26The Attorney General was not notified of the foreclosure proceedings.
27Ms. Bradt appears to have continued to live on the Property, notwithstanding the foreclosure.
Efforts at Funding for the Appeal
28In January 2015, the Applicant applied to LAO for funding for his appeal. He failed to disclose Ms. Bradt’s existence to LAO. He told LAO that his home had been foreclosed, although the foreclosure order had not been granted at that time. The Applicant was asked to supply the foreclosure documents and to provide his 2013 and 2014 tax returns and solicitor’s accounts. He provided his 2014 return, foreclosure documents and solicitor’s accounts, but failed to produce his 2013 Notice of Assessment from Revenue Canada.
29LAO obtained a copy of the Applicant’s recognizance of bail, at which time it learned of Ms. Bradt’s existence. LAO contacted Ms. Bradt in April 2015. She confirmed that she was residing at the Property. Ms. Bradt initially agreed to provide LAO with copies of her 2014 T4, current pay stubs and bank account records, and to sign a consent and release permitting LAO to make other inquiries into her finances. However, shortly thereafter she told LAO that “after speaking with counsel”, she refused to sign the releases necessary for a full financial assessment.
30After the Applicant was denied Legal Aid by the Area Committee, he produced some of the documents requested by LAO pertaining to Ms. Bradt’s finances. However, LAO deemed the information provided to be insufficient.
THE APPLICABLE LEGAL PRINCIPLES
31Section 684 (1) of the Criminal Code reads as follows:
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.
32Thus, pursuant to s. 684, this court has the authority to assign counsel to act on Mr. Staples’ behalf if, in its opinion, (1) it is desirable in the interests of justice that he should have legal assistance, and (2) it appears that he does not have sufficient means to obtain that assistance.
33Mr. Staples, as the applicant, bears the burden of proof on this application: R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 31.
34In deciding an application under s. 684(1), the court must consider three general questions:
Does the applicant have the means to hire counsel privately?
Has the applicant advanced arguable grounds of appeal?
Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel? In answering this question, the court should examine such matters as the complexity of the legal arguments to be advanced on appeal and the applicant’s ability to make legal argument in support of the grounds of appeal: Abbey, at para. 33.
35The decision on this application turns on a consideration of the Applicant’s financial means.
THE APPLICANT’S FINANCIAL MEANS
36The Applicant says that he does not have the means to hire counsel. He submits that even if Ms. Bradt is part of his family unit and changes her mind and agrees to contribute to the costs of his appeal, together their income and assets are insufficient to fund an appeal of this magnitude. He points to the Agreement as evidence of his lack of financial means. He says that the Agreement shows that the Attorney General was content to fund the costs of his defence at trial and now his financial situation is even worse. When facing trial, he was working and receiving income. Now he is incarcerated and his house has been foreclosed.
37The Crown contends that the Applicant cannot claim that he has exhausted all opportunities to obtain legal aid when the reason that legal aid funding was refused was his own incomplete financial disclosure. It further says that an applicant cannot dispose of his assets recklessly and then plead an inability to retain counsel. Finally, it argues that it is contrary to the interests of justice to grant the application as to do so would enable the Applicant to abuse the process by which criminal appeals are publicly funded.
38I accept the Crown’s position on this matter.
39As a preliminary matter, I reject the Applicant’s characterization of the Agreement. The terms of the Agreement make it clear that the Attorney General did not fund the costs of the Applicant’s legal defence at trial. To the contrary. The Agreement was clearly designed to ensure that the Applicant would repay the costs of his defence. However, because it might have posed a hardship if the Applicant were required to pay the legal costs of his defence all at once, the Agreement gave the Applicant time in which to repay his legal costs.
40To obtain the exceptional relief of government funded counsel, the Applicant must satisfy the court that he has exhausted all other means of paying for counsel. He must also be clear and transparent in disclosing his financial affairs. In my view, the Applicant has done neither.
41On the record, the Applicant failed to make full and complete financial disclosure in the legal aid process. He initially failed to disclose the existence of Ms. Bradt. He told LAO that the Property had been foreclosed on when that had not yet happened. He did not provide all the documentation that LAO requested in respect of his income. Ultimately, legal aid was denied because LAO was not satisfied that the Applicant had provided complete and credible financial information.
42The Applicant cannot satisfy his burden of showing that he has exhausted the legal aid process when his rejection was due to his own incomplete financial disclosure.
43Moreover and very significantly, the circumstances surrounding the foreclosure of the Property raise real questions about the Applicant’s conduct of his financial affairs.
44Mr. Mazza is the Applicant’s long-time friend. He obtained title to the Property based on foreclosure proceedings that the Applicant did not contest. On the record, it appears that as a result of failing to contest those proceedings, the Applicant forfeited over $100,000 in excess value on the Property beyond what was owing on the two mortgages.
45Furthermore, in contravention of his obligations under the Agreement, the Applicant did not notify the Attorney General of the foreclosure proceedings. Effectively, this deprived the Attorney General of the opportunity to recover $100,000 of the amount the Applicant owes under the terms of the Agreement. In light of the Applicant’s complicity in the disposition of the underlying security for repayment, it is difficult to see how public funding of his appeal is justifiable.
46Moreover, there is a lack of transparency about the foreclosure proceedings that calls into question its arm’s-length nature. In this regard I would point to, among other things, the fact that the Applicant’s common law spouse continues to reside on the Property, despite title having gone into Mr. Mazza’s name.
47In these circumstances, the Applicant has not satisfied his burden in terms of financial need.
DISPOSITION
48For these reasons, the application is dismissed.
49In my view, disclosure of the terms of the Agreement was necessary for the Crown to answer the present application. I order that the application record be placed under seal by this Court so that the Agreement remains confidential.
“E.E. Gillese J.A.”
