December 31, 2021 – This press release is sponsored by Investigation Counsel PC, Investigation Counsel PC, Fraud Recovery Lawyers.

On September 30, 2021, Justice Robert Graesser of the Alberta Court of Queen’s Bench
dismissed an application to stay the criminal fraud proceedings against Francis Emmanuel
Mella of Edmonton, Alberta. Mr. Mella had argued that his section 11(b) Charter right to a trial in
a ‘reasonable’ time had been violated. The back story to the application is worthy of a review.

Francis Emmanuel Mella was charged with fraud and theft on June 28, 2017. RCMP say he
allegedly made multiple fraudulent transactions while he was the financial controller of Dave’s
Diesel, an Acheson, Alberta., business, between 2003 and 2014.

Before Dave’s Diesel filed a criminal complaint, they had spent approximately three years (2014
to 2017) trying to recover from Mr. Mella in the civil courts. Mr. Mella spent approximately 15
months in prison for civil contempt, unwilling to give up the funds, and then fled to Belize.

In October 2014, Dave’s Diesel commenced a civil action against not only Francis
Emanuel Mella, but also entities that received their misappropriated funds, including Matrix
Consulting Ltd., M2 Systems Inc., ABC Corp., and Mella Fitness Consulting Ltd.

On October 31, 2014, Dave’s Diesel obtained an asset freezing order directing the defendants
to limit their monthly expenditures to $2,000 per month. Dave’s Diesel also obtained an order
directing the provide detailed monthly expenditure records.

In defiance of the asset freezing order, Mr. Mella opened a bank account in the name of his
wife. With small exceptions, he then made deposits into the account for his own or his
companies’ benefit. Nearly all of the funds in the account were paid out by Mr. Mella or his
related businesses.

On February 19, 2015, the Court declared that Mr. Mella had violated the asset freezing order
because he had unlawfully used more money than permitted and because he had failed to
provide adequate expenditure records (First Contempt Order).

Mr. Mella was ordered to repay the money wrongfully arrogated to himself (the amounts in
excess of the expenditure limit orders issued by the civil courts) and ordered to provide detailed
financial records of his expenditures. Mr. Mella did not comply with this order.

On March 27, 2015, Mr. Mella and the civil defendants Matrix Consulting Ltd., M2 Systems Inc.,
ABC Corp., and Mella Fitness Consulting Ltd. consented to a civil judgment against them for
$2,269,757 for fraudulent misappropriation of funds. The consent to judgment is an admission of
civil liability for the fraud alleged. Mr. Mella sees a distinction between this and the criminal
charge.

On March 23, 2016, the Court again declared Mr. Mella in civil contempt: for the ongoing
contempt under the First Contempt Order and also because in at least three instances he had
evaded paying judgments by having creditors pay others such as his wife.

On March 31, 2016, the Court issued Reasons for Decision finding that Mr. Mella’s transfers of
money to his wife constituted a fraudulent conveyance made with the intent to defeat, hinder or
delay Dave’s Diesel’s claim: Dave’s Diesel Repair v Mella, 2016 ABQB 190.

On July 27, 2016, the Court dismissed an application to stay the civil contempt of court
sanctions. The Court held that it was not Mr. Mella’s failure to pay his civil debt that sent him to
jail, but rather his ongoing flagrant breaching of the civil court’s orders: Mella v Dave’s
Diesel, 2016 ABCA 226.

In his defence, Mr. Mella alleged that he did not have the ability to pay the contempt sanctions.
The Court noted, however, that the house Mella lived in, the car he drove, and his failure to
disclose where the $2.2 million of Dave’s Diesel’s money all strongly suggested otherwise:
Mella v Dave’s Diesel, 2016 ABCA 226.

On June 28, 2017, as mentioned above, Mr. Mella was charged with fraud and theft. It appears
that Dave’s Diesel had had enough of paying for the civil court process without getting any
returns.

Mr. Mella theafter bought some time by filing for bankruptcy and appealing the second contempt
finding. That break from the civil recovery process ended when on January 25, 2019 Mr. Mella
was sentenced to a 12 months in prison for civil contempt.

It appears that Mr. Mella then decided to skip town. In March 21, 2019, Mr. Mella failed to
appear at a hearing in his criminal case. A warrant was issued for his arrest. He was discovered
in Belize in May 2019, and was detained by Belize authorities and he returned to Toronto on
May 6, 2019.

Why is all of this important to the latest installment of Mr. Mella’s attendances in the court
process? The obvious answer is that the criminal process can not be counted on to have the
likes of Mr. Mella have their case tried on its merits.

In the September 30, 2021, decision, Mr. Mella came pretty close to having the criminal case
stayed – he even argued that his contracting COVID in prison was the responsibility of the
Crown and delayed his ‘right’ to a trial in a reasonable time.

Another problem with the Canadian criminal justice system is that judgments, whether after
trials or upon guilty pleas, are often not published or reported on. Our interest is whether the
contempt is a factor considered in sentencing if Mr. Mella is found guilty in the criminal courts.

The Reasons for Decision in Mr. Mella’s Charter application are reported at R. v. Mella, 2021
ABQB 785, available here.