Court File and Parties

Court File No.: CR-17-00000103-00MO Date: 2017-05-09 Superior Court of Justice - Ontario

Re: R. v. Dellen Millard

Before: M.A. Code J.

Counsel: Nadir Sachak, Counsel for the Applicant Millard Orlando Da Silva and Andi Jin, Counsel for the Respondent Crown

Heard: May 2, 2017

Endorsement

[1] The Applicant Dellen Millard (hereinafter, Millard), is charged in an Indictment alleging that he committed first degree murder on the person of Laura Babcock. He is jointly charged with one Mark Smich (hereinafter, Smich). The trial commenced before me on March 27, 2017 with the hearing of various pre-trial Motions, pursuant to the powers that are set out in s. 645(5) of the Criminal Code. The entire pre-trial and trial schedule is not yet fixed but the aim is to complete the pre-trial Motions by the end of September 2017 and to select the jury in October 2017. The trial in the fall is anticipated to last three months.

[2] The original trial date was February 13, 2017. It was set at a point when Millard was self-represented. That original trial date was adjourned because Millard decided that he wished to retain counsel. McMahon J. granted the adjournment and set a new trial date for September 11, 2017. He also assigned me as the trial judge and scheduled some of the pre-trial Motions to begin on March 27, 2017. As noted above, those Motions are now under way, including the present Motion which I will describe below.

[3] Millard has been trying to retain counsel but he has been unsuccessful to date. Mr. Sachak has been acting for Millard, without formally being “on the record” and without a retainer. He has acted responsibly and has held his calendar available for the trial, in the event that he is retained in the near future. He has brought the present Motion on behalf of Millard, seeking the s. 7 and s. 24(1) Charter of Rights remedy of a stay of proceedings unless the Attorney-General agrees to fund counsel for the present trial. This kind of Motion is generally referred to as a Rowbotham Application.

[4] The three-part test for a Rowbotham Application is now well-established, namely: the accused has been denied Legal Aid; the case is sufficiently serious and complex that representation by counsel is essential to a fair trial; and the accused lacks the financial means to retain counsel privately. See: R. v. Rowbotham et al. (1988), 41 C.C.C. (3d) 1 at p. 69 (Ont. C.A.); R. v. Rushlow (2009), 2009 ONCA 461, 245 C.C.C. (3d) 505 at paras. 17-21 (Ont. C.A.).

[5] The Rowbotham Application in the present case is relatively straightforward because there is no dispute that the first two branches of the test have been met. Millard was refused Legal Aid by the Area Committee. He appealed the refusal and on March 31, 2017 the appeal was denied. Furthermore, there is no question that the pending murder trial is both serious and complex and that counsel is essential to Millard’s s. 7 fair trial rights. The only issue is whether he has sufficient funds to retain counsel privately.

[6] The issue concerning Millard’s financial means is factually complex and it is disputed by the parties. The defence submits that Millard is now indigent on the basis that he has essentially become bankrupt over the past four years. The Crown submits that Millard has strategically disposed of assets, has failed to account for some of the proceeds, and has still retained access to sufficient funds to pay for counsel privately.

[7] I need not resolve all of the complex factual issues surrounding Millard’s finances because, in my view, there is a relatively simple path to resolving the present Motion. That path should be attempted, as an interim step, before arriving at any final determination of the Rowbotham Application. If the interim resolution that I propose is successful, it will be unnecessary for Mr. Sachak to pursue the Rowbotham Application. If my proposed resolution proves unsuccessful, Mr. Sachak is at liberty to renew the Rowbotham Application. The parties can update and supplement the Record at that time, if necessary.

[8] Given that it is not necessary to finally decide the Rowbotham Application, I intend to set out only those facts that are essential to the interim resolution of the issue.

[9] What has complicated the dispute concerning Millard’s financial ability to retain counsel is that he is facing, or has been facing, three separate murder trials. In May 2013 he was charged with the first degree murder of Tim Bosma in Hamilton. He has been in custody since that time, that is, for the past four years. He was jointly charged with Smich in the Hamilton murder and their joint trial proceeded before A. Goodman J. and a jury. The trial was lengthy and complex. A number of pre-trial Motions were heard over a three-and-a-half-month period in late 2015. The jury trial then proceeded over a four-and-a-half-month period in 2016. Both accused were convicted in June 2016. As a result, Millard is presently serving a sentence of life imprisonment.

[10] Millard retained counsel privately for the Hamilton murder trial. There is evidence before me that he expended as much as $1.2 million funding his defence. I need not make any finding as to the exact amount that he paid but there is no doubt that it was a very expensive matter and that he paid for it from his own funds.

[11] While the Hamilton murder trial was still pending, in April 2014, Millard and Smich were jointly charged in Toronto with the Laura Babcock murder. At the same time, Millard was charged alone with the murder of his father, Wayne Millard. As a result, Millard was facing three separate murder trials throughout much of 2014, 2015, and 2016.

[12] At the time of his initial arrest on the Hamilton murder, in May 2013, Millard’s family owned and operated two businesses named Millard Properties Inc. and Millardair Inc. The Applicant Millard owned 50% of the shares in these private companies. His father Wayne owned the other 50% of the shares in the two companies. Wayne Millard died in November 2012 and so it was the father’s estate that held the other 50% of the shares in the two companies, at the time when Millard was first charged with murder in Hamilton in May 2013. The Applicant Millard is the sole residual beneficiary of the estate. He, therefore, could become the 100% owner of the two companies, depending on how the estate is settled. The estate cannot be settled until the allegation that Millard murdered his father has been determined at Millard’s third pending murder trial. That separate trial is not scheduled to proceed until after the present trial, relating to the murder of Laura Babcock, has been completed.

[13] In addition to his interest in the above corporate assets, Millard personally owned five residential properties, namely, two condominiums, a house, a farm, and a six-unit rental property. They were all located in or near Toronto. Given the current market for residential real estate in or near Toronto, these properties were particularly liquid assets that could easily be sold.

[14] The main asset of the two Millard companies was a long-term lease of certain property at the Waterloo Airport on which the companies had built a large new aircraft hangar in 2012. It was the largest hangar at the airport and it was equipped for aircraft maintenance and repair services. This property was encumbered with a large loan from RBC. The exact amount owed by the Millard companies to RBC is the subject of some dispute but it appears to have been between $3.5 million and $4 million. After Millard’s arrest in May 2013, for the Hamilton murder, RBC issued demands for repayment of the loan. Millard Properties Inc. was the debtor but Millardair Inc., and both Wayne Millard and the Applicant Millard, had all guaranteed the loan.

[15] Once Millard was detained in custody in May 2013, and was unable to run the Millard businesses or manage his various properties, he appointed his mother as his Attorney for Property. He also agreed that his mother should replace him as the Executor and Trustee of Wayne Millard’s estate. It will be recalled that Wayne Millard had died in November 2012, prior to the Applicant Millard’s arrest in Hamilton some six months later. Finally, Millard’s mother was appointed as the sole officer and director of the two Millard companies. Millard’s mother, whose name is Madeleine Burns, was also a substantial creditor of the Applicant Millard as she had advanced monies to him in order to help pay for some of Millard’s real estate purchases. Once he was charged in the Hamilton murder case, she advanced further monies to help pay for his defence. In this regard, there are promissory notes dated in June and September 2014 in which Millard promised to repay Ms. Burns a total of $200,000.

[16] The steps taken by Ms. Burns in relation to Millard’s assets, once he was in custody in Hamilton, are complex and are the subject of some dispute. However, what is not disputed is that she re-financed and sold Millard’s five residential properties during 2013 and 2014. This lengthy process generated a large amount of money. The money was used by Millard for three main purposes: to pay his legal fees in relation to the Hamilton murder trial; to repay debts owed to his mother; and to fund shareholder loans to the Millard companies, in order to pay their operating expenses and to pay off the substantial debt owed to RBC. Once the RBC debt was paid off, and the Waterloo Airport lease and hangar was free of encumbrances, Ms. Burns sold this corporate asset for $4.8 million in April 2015. The purchaser, Penmore Holdings Inc., paid $3.2 million in cash and Millard Properties Inc. took back a second mortgage in the amount of $1.6 million. The mortgage only paid interest for the first two years, in payments of about $2,600 per month. However, starting this month (May 2017), the payments become blended principal and interest for the remaining eight year term of the mortgage. The payments will be about $18,000 per month.

[17] The last significant event in this four-year history is that Ms. Burns brought an Application in this Court on November 13, 2015, seeking the appointment of a Receiver of all the property and assets of Millard, pursuant to s. 101 of the Courts of Justice Act. Newbould J. granted the Application and appointed Zeifman Partners Inc. as the Receiver. On June 14, 2016, the Receiver filed its first Report. On June 16, 2016, Ms. Burns applied to the Court for the release of $75,000 in shareholder loans that Millard Properties Inc. owed to Millard. The order was granted by Hainey J., specifying that the monies are “to be used solely to fund Millard’s ongoing legal fees incurred in defending the Criminal Charges and to pay the legal fees of Burns, in her capacity as Attorney for Property in connection with this proceeding.”

[18] Although there is considerable dispute concerning Millard’s current assets, and his access to monies to pay legal fees, there is no dispute that he is presently the 50% shareholder of the Millard companies and that he is owed very substantial amounts by the companies in the form of unsecured shareholder loans. That indebtedness to Millard is more than $3 million. There is also no dispute that Millard Properties Inc. presently has one substantial asset, namely, the vendor take-back mortgage from Penmore Holdings Inc. in the amount of $1.6 million. There is also evidence that Millard Properties Inc. presently has about $200,000 cash in the bank. The 2016 financial statements of Millard Properties Inc. will soon be available and will more reliably set out the company’s present assets. The 2015 financial statements show that there was $454,286 in the bank at the end of that year. Finally, there is no dispute that the main reason the company has this $1.6 million mortgage asset, as well as some significant amount of cash in the bank, is that the Applicant Millard liquidated his own personal property and loaned substantial proceeds to the company in order to pay off the company’s debt to RBC and to pay the company’s ongoing operating expenses. The company was then able to sell its most valuable asset — the airport lease and hangar — in return for $3.2 million cash and the $1.6 million vendor take-back mortgage.

[19] The Receiver, represented by its President Allan Rutman, testified before me on the Rowbotham Application. When I asked him whether the Receiver would apply to a judge of this Court for release of the funds generated by the vendor take-back mortgage (and any available cash in the bank), to be paid to Mr. Sachak in order to fund Millard’s defence at the pending Toronto murder trial, Mr. Rutman asked for an opportunity to consult with counsel. The Receiver’s counsel, Ms. Mahar, was present in court. I stood down Mr. Rutman’s testimony so that he could consult with Ms. Mahar. When he resumed his testimony, Mr. Rutman advised the Court that he would apply for release of the funds to defence counsel, if I were to ask that he do so as part of my Order in relation to the present Rowbotham Application. The Receiver’s Application, of course, would be brought before a judge of the Commercial List on notice to any interested parties, and it is that Judge who would determine whether the proposed release of funds was appropriate in the context of the law and facts relating to this particular Receivership.

[20] In my view, the Rowbotham Application in the present murder case cannot proceed until it is determined whether Millard has access to the $1.6 million mortgage asset (and any cash in the bank) presently held by Millard Properties Inc. It seems to me to be just and equitable that Millard be granted access to those funds. He is substantially responsible for the company having these assets in the first place because he loaned the monies that allowed the company to continue operating, to pay off the RBC loan, and to then sell the company’s main asset on the market in an unencumbered state. Furthermore, all the evidence before me is to the effect that Millard Properties Inc. is a shell company with no operating business or operating assets. It simply has a bookkeeper, an accountant and a director whose sole duties are very modest, namely, receiving the monthly mortgage cheque and depositing it in the corporate bank account. There appear to be no other essential operating expenses. Finally, Ms. Burns (who is the sole officer and director of Millard Properties Inc. and the Executor and Trustee of Wayne Millard’s estate) strongly supports the proposal that the Receiver apply for the release of these funds, in order to pay for Millard’s defence on the Toronto murder charge. She testified that Millard had asked her whether this was feasible and that he wanted the vendor take-back monies to be used for his defence. Millard testified to similar effect before me. It, therefore, appears that he too would consent to the release of these funds to Mr. Sachak. Indeed, if Millard refused to consent to the release of this money that is owed to him, the Rowbotham Application would surely fail.

[21] I should add that it would obviously be in the interests of the administration of justice if these funds could be released to Millard’s counsel, Mr. Sachak, in order that Millard has counsel to conduct his defence at the pending murder trial in Toronto. Otherwise, this complex and serious case will have to proceed with one accused (Smich) represented by counsel and one accused (Millard) without counsel, subject to the outcome of the Rowbotham Application and subject to Millard’s access to some other source of money. The evidence before me is that Penmore Holdings Inc. is an operating company and that it has been reliably paying the mortgage each month for the last two years. These payments should provide an income stream to pay Mr. Sachak’s fees.

[22] For all these reasons, the Rowbotham Application is adjourned sine die in order to allow the Receiver to bring an Application before a Judge of the Commercial List for the release of the vendor take-back mortgage monies, in an amount of approximately $18,000 per month, and for the release of any available cash in the company bank account, solely for the purpose of paying Mr. Sachak’s reasonable fees in defending Millard at the present Toronto murder trial. The Rowbotham Application can be brought back on in front of me, if necessary, once the Receiver has taken this step. It goes without saying that the Receiver must act expeditiously, given the present timing of the murder proceedings in this Court. In my view, the Application to a Judge of the Commercial List should be brought on within ten days of the release of these Reasons.

M.A. Code J. Date: May 9, 2017