Court of Appeal for Ontario
Date: February 15, 2017
Docket: M47386 (C59710)
Laskin J.A. (In Chambers)
Between
Her Majesty the Queen Respondent
and
Mark Staples Applicant
Counsel:
- Michael Lacy and Marco Sciarra, for the applicant
- Susan Magotiaux, for the respondent
Heard: January 25, 2017
Laskin J.A.:
A. Introduction
[1] In 1998 Mark Staples' father and sister were murdered. Their bodies were found in his father's truck in a parking lot near Pearson International Airport in Mississauga. Twelve years later, in 2010, Staples was arrested and charged with their murders. In 2014, he was tried and convicted of two counts of first degree murder. He filed a notice of appeal through this court's inmate appeal program.
[2] In April 2016, Staples applied under s. 684(1) of the Criminal Code to have counsel appointed to argue his appeal. After reserving her decision, on May 11, 2016, Gillese J.A. dismissed Staples' application: see R v. Staples, 2016 ONCA 362, 352 O.A.C. 392. He now asks me to reconsider her dismissal and to appoint counsel. Alternatively, he asks that I appoint amicus curiae. He submits that there are material changes in circumstances since Gillese J.A. dismissed his application. He argues that in the light of these material changes, I should reconsider her dismissal and grant his s. 684 application.
[3] The Crown opposes the application. Counsel argues that there are no material changes in circumstances that would justify reconsidering Gillese J.A.'s decision. The Crown does not, however, oppose the appointment of amicus, as the Crown recognizes that the court may want the assistance of counsel to fairly decide this first degree murder appeal.
B. Section 684 Applications and Requests for Reconsideration
(1) Section 684 Applications
[4] Section 684(1) of the Criminal Code provides:
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] To obtain an order appointing counsel under s. 684, an applicant must meet two criteria. The applicant must show:
- It appears desirable in the interests of justice that the accused should have legal assistance; and
- It appears that the accused has not sufficient means to obtain that assistance.
[6] The first criterion – the interests of justice criterion – ordinarily focuses on the appeal itself. The applicant must show an arguable appeal and an inability to present the appeal effectively without the help of counsel. Or, the court itself may be of the view it cannot fairly decide the appeal without the help of counsel. See R v. Bernardo, 105 O.A.C. 244; and R v. Josipovic, 25 January 2017, Toronto, M47138 (C62030) & M47342 (C62112) (Ont. C.A.).
[7] However, though the usual focus of the interests of justice inquiry is on the applicant's ability to present the appeal without counsel, the phrase is "flexible enough to encompass other societal interests that may arise in any particular s. 684 application": see R v. Stevenson, 2013 ONCA 645, at para. 9.
[8] The second criterion – the financial eligibility criterion – looks at whether the applicant has the current financial means to retain a lawyer. That the applicant has been refused legal aid – as Staples was – is not determinative because a s. 684 application is not a judicial review of a legal aid decision to deny funding: R v. Le, 2016 ONCA 798.
(2) Gillese J.A.'s Decision
[9] As I read my colleague's reasons, though she suggested Staples may not meet the financial eligibility criterion, she dismissed his application principally because he did not meet the interests of justice criterion. In doing so, she did not say anything about the merits of his appeal or whether Staples could effectively argue his appeal without counsel. She focused on the wider interests that the interests of justice criterion may encompass.
[10] Gillese J.A. noted that Staples had been denied legal aid funding, but her focus was on the reason for the denial. At para. 4 of her endorsement, she summarized her conclusion. She dismissed Staples' application because "he has not been clear and transparent in disclosing his financial circumstances or in the conduct of his personal financial affairs." She accepted the Crown's position that Staples could not claim he had exhausted his efforts to obtain legal aid when legal aid's refusal of funding was because of Staples' own incomplete financial disclosure. To grant the application would be "contrary to the interests of justice … as to do so would enable the Applicant to abuse the process by which criminal appeals are publicly funded": at para. 37.
[11] In dismissing the s. 684 application, Gillese J.A. pointed to three areas where Staples had not been forthcoming about his finances:
Staples had not disclosed the full extent of his financial affairs to Legal Aid or provided Legal Aid with all relevant documents;
Staples failed to disclose the foreclosure proceeding on his property to the Attorney General, contrary to the terms of a funding agreement in place for the funding of his defence costs at trial. Further, the foreclosure proceeding itself may not have been at arms-length and may have shielded $100,000 of equity in the property, as the foreclosure was initiated by Staples' good friend and lawyer, Paul Mazza, who had put a second mortgage on the property to recover unpaid legal fees;
Staples was not forthcoming with Legal Aid about his relationship with Ms. Bradt or her finances, even though he had at one time called her his common law spouse.
[12] It is in these three areas, especially the first two, that Staples has filed additional information to show a material change in circumstances.
(3) Reconsideration Requests
[13] Both counsel agree that I have jurisdiction to reconsider my colleague's decision if Staples, who has the burden, can show a "material change in circumstances". A material change in circumstances is "additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in [s. 684(1)]": see R v. Baltovich.
[14] In other words, a request for reconsideration is not a review. Staples must accept that Gillese J.A.'s decision, when made, was correct. He must provide information or evidence that was not before Gillese J.A., which may call into question the assessment of at least one criteria for the appointment of counsel under s. 684(1) of the Code. If Staples can demonstrate a material change in circumstances, he must then show that he meets both criteria under s. 684(1).
[15] In summary, an application for reconsideration of a refusal to appoint counsel under s. 684(1) is a two-step proceeding. Staples must show both:
- A material change in circumstances; and
- The two criteria in s. 684(1) have been met.
[16] For the reasons that follow, I am satisfied that Staples has met both steps. Therefore, I will appoint counsel to represent him on his appeal. As the background facts are admirably summarized in Gillese J.A.'s endorsement, I will refer only to those facts necessary to my decision.
C. There Has Been a Material Change in Circumstances Since the Application Before Gillese J.A.
[17] On the material filed before me, circumstances have materially changed in at least three ways since the application before Gillese J.A.
[18] First, this court's duty counsel inmate appeal program has unequivocally said it cannot assist Staples on his appeal. Gillese J.A. did not refer to the possible assistance from the program, which suggests that whether it would assist or not was undecided when she heard the application.
[19] Second, the evidence that Staples filed on this application addresses Gillese J.A.'s concern about incomplete financial disclosure to Legal Aid. Although Staples is now in custody, one of his lawyers, Marco Sciarra, diligently accumulated and provided to Legal Aid the missing documents it had originally sought. These documents include Staples' 2013 income tax return, his 2014 T4 slip, and the Notice of Foreclosure for his house. It now can no longer be said that Staples has not been transparent about his financial circumstances with Legal Aid.
[20] Third, the new material in the record before me fully addresses Gillese J.A.'s concerns about the foreclosure proceeding. She had three concerns: the foreclosure may not have been an arms-length transaction; it may have been used to shield $100,000 in equity for Staples' benefit; and Staples failed to notify the Attorney General about the foreclosure, contrary to his funding agreement.
[21] Paul Mazza, a senior lawyer in Hamilton, filed an affidavit on the application before me and was cross-examined on his affidavit. Mazza was friends with the Staples family, especially the applicant's father, and he acted for Staples when Staples was arrested in 2010. In his evidence, Mazza explained the background of the foreclosure proceeding and why he instituted it. His evidence was not contradicted.
[22] Mazza's evidence shows that the foreclosure proceeding was an arms-length transaction. In 2006, Staples purchased the property in question, a house at 96 Creighton Road in Dundas, Ontario, for $329,000. It was subject to a mortgage in favour of the Royal Bank of Canada for approximately $321,000.
[23] After Staples was arrested in 2010, Mazza and his office did a considerable amount of legal work for him. Initially, and pending the result of the preliminary inquiry, Mazza agreed to defer payment of his legal fees. After Staples was committed for trial, Mazza told Staples he would need to secure his fees by a second mortgage on Staples' home. Staples agreed. Mazza placed a $75,000 non-interest bearing second mortgage on 96 Creighton Road. The amount of the mortgage reflected Mazza's legal fees. The amount has never been challenged.
[24] After Staples was convicted and was placed in custody, Mazza told him he intended to foreclose on the property to protect his fees. Staples did not dispute the foreclosure proceeding, and had no basis to do so. Mazza took title to 96 Creighton Road, again subject to the bank's first mortgage.
[25] At the end of his cross-examination on his affidavit, Mazza directly addressed Gillese J.A.'s concern that the foreclosure proceeding may not have been an arms-length transaction. That suggestion was in his word, "outrageous". He testified:
Q. Well, I guess the last thing, to the extent that the suggestion still gets made, that this was not an arms-length transaction, or that you purposely engaged in conduct with a view to shielding this money for use in legal proceedings for Mr. Staples' appeal. What's your response to that?
A. That's completely outrageous. I want to go on record to say, this $75,000 is my money for the work that I have done, representing this gentleman. This is not for anybody else and I'm quite happy upon receiving that cheque, and they can take over the property.
Q. Well, would you give us the property, so we can use it for funding his criminal defence? I'm being serious, his criminal appeal. Would you sign over the property, including your $75,000 interest?
A. Including my money? Give up my money?
Q. Yes.
A. No.
[26] On the basis of Mazza's unchallenged evidence, the foreclosure proceeding appears to have been an arms-length transaction instituted solely to protect his legal fees.
[27] The evidence before me also casts doubt on the suggestion that before the foreclosure Staples had any equity in house, let alone equity of $100,000. As of December 2012, approximately $273,000 was still owing on the Royal Bank first mortgage. And the amount of Mazza's second mortgage was $75,000. Total mortgage financing was thus approximately $348,000.
[28] The suggestion that Staples still had equity of $100,000 in the property rests largely on an undated – but apparently a 2013 – evaluation by a real estate agent, which said "the median sale price" at 96 Creighton Road was $430,000. I give this valuation virtually no weight. It is not a certified appraisal. It is a one-half page statement, which simply lists, without any analysis at all, comparable sales in the area. Because it valued the property in 2013, it does not take account of the stigma attached to the property resulting from Staples' conviction. Nor does it take account of the deterioration of the property after Staples was incarcerated, to which Mazza attested. If there was any equity in the property before the foreclosure it was far less than $100,000. And any equity was extinguished by the foreclosure, now shown to be at arms-length.
[29] Finally, the material before me addresses Gillese J.A.'s other concern about the foreclosure proceeding: Staples failed to tell the Attorney General about it, contrary to his funding agreement. The background to her concern is as follows.
[30] Staples had brought a Rowbotham application for state-funded counsel for his defence at trial. He withdrew that application and instead entered into a funding agreement with the Attorney General. Under the funding agreement, the Attorney General agreed to pay for Staples' defence, but on conditions. One condition was that he would pay the Attorney General $25,000 upfront and a further $2,000 a month. He complied with that condition. Another condition was that he agreed to put a third mortgage on 96 Creighton Road in favour of the Attorney General for $300,000. As it turned out, he could not do so, as he could not get insurance for the third mortgage.
[31] Another condition – the one in issue on the application – was that Staples had to notify the Attorney General of any change to his financial circumstances. A change would include a foreclosure proceeding against his property.
[32] When Mazza started his foreclosure proceeding, Staples did not notify the Attorney General. His failure to do so was perhaps understandable, as he was in custody at the time. Mazza, who was aware of the conditions of the funding agreement, also did not notify the Attorney General about his foreclosure proceeding. His evidence before me shows that his failure to do so was inadvertent, not deliberate. And, most importantly, it caused no prejudice to the Attorney General. After the foreclosure, Mazza went to the Attorney General and offered to put it in the position it would have been in if it had known about the foreclosure beforehand, or even if it had a third mortgage on the property. He offered to let the Attorney General take over the property – by a quit claim deed – as long as the Attorney General paid his legal fees of $75,000. The Attorney General declined the offer.
[33] In summary, the evidence before me alters the key circumstances that led Gillese J.A. to deny Staples' s. 684 application: his failure to make full financial disclosure to Legal Aid and concerns about the foreclosure proceeding. This evidence, together with the inability of our duty counsel program to assist Staples on his appeal, amount to material changes in circumstances, which justify a reconsideration of his s. 684 application.
[34] Gillese J.A. did have one other concern: Staples had not been forthcoming about his relationship with Ms. Bradt. On his bail review application in February 2011, Staples acknowledged he had lived with Ms. Bradt for four years, though he also said she contributed little to the upkeep of 96 Creighton Road and kept the money she earned in a separate bank account. On his application for Legal Aid, Staples apparently said nothing about Ms. Bradt or his relationship with her. On the material before me, little if anything turns on his failure to do so.
[35] Both Mazza and Sciarra addressed the relationship between Staples and Ms. Bradt. Both gave evidence that in a legal and financial sense, Staples and Ms. Bradt were not in a common law relationship. I cannot discount their evidence. According to them, before Staples' trial Ms. Bradt had her own apartment. She did rent 96 Creighton Road after Staples was convicted. But, according to Mazza, he leased it to her only because he was unable – due to the stigma associated with the property – to find another tenant. Also, when Staples bought 96 Creighton Road he took title in his own name. On his application to get mortgage financing from the Royal Bank he said "I am not a spouse". Ms. Bradt did not get notice of the foreclosure proceeding or challenge it when she learned about it.
[36] I accept that Staples should have disclosed his relationship with Ms. Bradt. If they were not common law spouses, they at least had a close relationship. But the only real relevance of their relationship to Staples' legal aid application or his s. 684 application would be her ability to help fund his appeal. As I discuss in the next section, on the available evidence, Ms. Bradt likely has no source of funds to help Staples pay for his appeal. And even if the information before me does not materially change Gillese J.A.'s concern, the other material changes in circumstances I have already referred to justify a reconsideration of Staples' s. 684 application.
D. The Criteria for a s. 684 Order Have Been Met
[37] As Staples has shown a material change in circumstances since Gillese J.A. refused his s. 684 application, I now consider his application afresh. I am satisfied he is entitled to an order under s. 684 appointing counsel to argue his appeal.
(1) It Appears Desirable in the Interests of Justice to Appoint Counsel
[38] Staples has been convicted of two counts of the most serious offence in our criminal law, first degree murder. The inmate duty counsel program has refused to assist him, no doubt because the breadth and complexity of the appeal is beyond the program's mandate. The appeal itself is certainly arguable. I do not believe the Crown says otherwise. Nor does the Crown contest that Staples needs the help of counsel to present his appeal effectively. The case against him was entirely circumstantial. The jury deliberated for five days. At least one of the trial judge's rulings – on the alternative suspect application – will have to be reconsidered in the light of the Supreme Court of Canada's later decision in R v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475. Staples may have to bring applications for further disclosure and likely fresh evidence. He needs counsel to argue his appeal.
[39] With the new information provided on this application, no societal interests detract from the desirability of appointing counsel. I accept, as Gillese J.A. did, that an applicant's failure to be transparent with or provide full financial disclosure to Legal Aid may affect whether the interests of justice criterion has been met. Whatever concerns about transparency and incomplete disclosure existed at the time of the application before my colleague, they have now been addressed. Staples has met the interests of justice criterion.
(2) It Appears That Staples Has Insufficient Financial Means to Retain a Lawyer
[40] To preserve Staples' fair appeal rights I must consider the current evidence about his financial means, not the historical evidence: see R v. Le, at para. 22.
[41] Staples has been in custody for over two years. Whatever equity he may have had in his house – and for reasons I have already discussed, I doubt there was much – has been extinguished by Mazza's arms-length foreclosure proceeding. Nothing in the record suggests Staples has any money in a bank account or other assets that can be used to retain counsel. Whatever money or assets he had, he used to fund his defence at trial.
[42] After Gillese J.A.'s decision, Staples asked Legal Aid to reconsider its refusal. Legal Aid declined to alter its decision. The basis of its denial, however, is instructive. Legal Aid simply relied on Gillese J.A.'s reasons in concluding that Staples did not qualify for legal aid. It did not refer to any of the material now before me, nor did it conduct a current assessment of Staples' financial eligibility. Although I am not judicially reviewing Legal Aid's decision, I see nothing in its decision to suggest Staples can now fund his appeal.
[43] Finally, the Crown does not suggest that Staples has any source of income to retain counsel on appeal, except perhaps Ms. Bradt. It was her refusal to provide her own financial assessment that mainly led Legal Aid Ontario in its June 2015 decision to uphold the Area Committee's refusal of legal aid funding.
[44] But the preponderance of evidence about Ms. Bradt's financial situation makes it highly unlikely she has the means to assist Staples. In April 2015, she told Legal Aid she worked three days a week, earning $18 an hour. She said she had no assets or property. She had no interest in Staples' property on which Mazza foreclosed – indeed she was not even given notice of the foreclosure proceeding. On his bail review application before trial in February 2011, Staples testified that Ms. Bradt had no interest in his property and he never asked her to be a surety because "she hasn't got the financial backing or means, to be in that situation"; that she keeps whatever money she has separate; and that he has no access to it.
[45] None of this evidence about Ms. Bradt's financial means has been contradicted. Overall, I am satisfied Staples has neither the financial means nor access to any source of money to enable him to retain counsel for his appeal.
[46] Staples is entitled to a s. 684 order. It thus unnecessary to consider his alternative request for the appointment of amicus.
E. Conclusion
[47] I appoint Michael Lacy and Marco Sciarra to represent Mark Staples on his appeal. My order will include the funding for bringing this s. 684 reconsideration application.
[48] Should counsel be unable to agree on any terms of my order, they may arrange a conference call with me.
Released: February 15, 2017
"John Laskin J.A."
Footnotes
[1] The latest date I was provided with information about the amount owing on the Royal Bank mortgage.