



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Staples, 2016 ONCA 362

DATE: 20160511

DOCKET: M46146 (C59710)

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

[1]

This 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

[2]

On 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.

[3]

Mr. 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.

[4]

The 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

[5]

The 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.

[6]

The Applicant was arrested in June 2010, some twelve years after the
    murders.

[7]

On 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.

[8]

Under 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.

[9]

The Applicants trial before a judge and jury took place in the fall of
    2014.  The Applicant did not testify at trial.

[10]

The Crowns 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
    fathers sizeable estate.

[11]

Mr. Mazza, who had acted as legal advisor to the executor of William
    Staples estate, was called as a Crown witness. Mr. Mazza testified that the
    Applicant received approximately $1.4 million from his fathers estate.

[12]

During his trial testimony, Mr. Mazza was asked about his relationship
    to the Applicant. He conceded that he was the Applicants surety and long-time
    friend, and that he had acted as the Applicants lawyer in civil matters in the
    past.

[13]

The 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 Applicants Property

[14]

In 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.

[15]

On 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

[16]

The Applicants application to LAO for the funding of his defence at
    trial was denied on financial grounds.

[17]

In 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
    Applicants other sureties, Nils Foss.

[18]

The 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).

[19]

The 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 Applicants 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.

[20]

The 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.

[21]

The 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.

[22]

The 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

[23]

The Applicant was convicted at the end of November 2014.

[24]

By 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.

[25]

As 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).

[26]

The Attorney General was not notified of the foreclosure proceedings.

[27]

Ms. Bradt appears to have continued to live on the Property, notwithstanding
    the foreclosure.

Efforts at Funding for the Appeal

[28]

In January 2015, the Applicant applied to LAO for funding for his
    appeal. He failed to disclose Ms. Bradts 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 solicitors
    accounts. He provided his 2014 return, foreclosure documents and solicitors
    accounts, but failed to produce his 2013 Notice of Assessment from Revenue
    Canada.

[29]

LAO obtained a copy of the Applicants recognizance of bail, at which
    time it learned of Ms. Bradts 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.

[30]

After the Applicant was denied Legal Aid by the Area Committee, he
    produced some of the documents requested by LAO pertaining to Ms. Bradts
    finances.  However, LAO deemed the information provided to be insufficient.

THE APPLICABLE LEGAL PRINCIPLES

[31]

Section 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.

[32]

Thus, 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.

[33]

Mr. 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.

[34]

In deciding an application under s. 684(1), the court must consider three
    general questions:

1.  Does the applicant
    have the means to hire counsel privately?

2.  Has the
    applicant advanced arguable grounds of appeal?

3.  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
    applicants ability to make legal argument in support of the grounds of appeal:
Abbey
, at para. 33.

[35]

The decision on this application turns on a consideration of the Applicants
    financial means.

THE APPLICANTS FINANCIAL MEANS

[36]

The 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.

[37]

The 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.

[38]

I accept the Crowns position on this matter.

[39]

As a preliminary matter, I reject the Applicants characterization of
    the Agreement.  The terms of the Agreement make it clear that the Attorney
    General did not fund the costs of the Applicants 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.

[40]

To 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.

[41]

On 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.

[42]

The 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.

[43]

Moreover and very significantly, the circumstances surrounding the
    foreclosure of the Property raise real questions about the Applicants conduct
    of his financial affairs.

[44]

Mr. Mazza is the Applicants 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.

[45]

Furthermore, 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 Applicants complicity in the
    disposition of the underlying security for repayment, it is difficult to see
    how public funding of his appeal is justifiable.

[46]

Moreover, there is a lack of transparency about the foreclosure
    proceedings that calls into question its arms-length nature.  In this regard I
    would point to, among other things, the fact that the Applicants common law
    spouse continues to reside on the Property, despite title having gone into Mr.
    Mazzas name.

[47]

In these circumstances, the Applicant has not satisfied his burden in
    terms of financial need.

DISPOSITION

[48]

For these reasons, the application is dismissed.

[49]

In 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.


