



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Staples, 2017 ONCA 138

DATE: 20170215

DOCKET: M47386 (C59710)

Laskin J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Staples

Applicant

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 fathers 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 courts 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:

1.

It appears desirable in the interests of justice that the accused should
    have legal assistance; and

2.

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
(1997)
, 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 applicants 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,
    2013 CarswellOnt 18859, 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, 2016
    CarswellOnt 16563.

(2)

Gillese J.A.s decision

[9]

As I read my colleagues 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 Crowns position
    that Staples could not claim he had exhausted his efforts to obtain legal aid
    when legal aids 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:

1.

Staples had not disclosed the full extent of his financial affairs to
    Legal Aid or provided Legal Aid with all relevant documents;

2.

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 of $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;

3.

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 colleagues
    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
, 2000
    CanLII 5680 (Ont. C.A.).

[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 courts 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 applicants 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]

Mazzas 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 Mazzas 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 banks 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. Whats your response to that?

A.       Thats 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 Im 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? Im 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 Mazzas 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
[1]
,
    approximately $273,000 was still owing on the Royal Bank first mortgage. And
    the amount of Mazzas 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
[2]
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 programs 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 judges rulings  on the alternative suspect
    application  will have to be reconsidered in the light of the Supreme Court of
    Canadas 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 applicants 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
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 Mazzas 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
    Aids 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 Committees refusal of
    legal aid funding.

[44]

But the preponderance of evidence about Ms. Bradts 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 hasnt 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. Bradts 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 (J.L.)

John
    Laskin J.A.





[1]
The latest date I was provided with information about the amount owing on the
    Royal Bank mortgage.



[2]

R. v. Rowbotham
(1988), 25 O.A.C. 321.


