R. v. Briand

Date: 20091120 Docket: 09/78 Citation: 2009 NCLA 65 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: REYANNE BRIAND and EARL MATTHEWS APPELLANTS AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, J.A. Application Heard: November 17, 2009 Decision Rendered: November 20, 2009 Reasons for Decision by Rowe, J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Stephen Dawson Rowe, J.A.: [1] Earl Matthews and his wife, Reyanne Briand, were convicted of fraud over $5000 and possession of stolen goods. They were found to have operated a “Ponzi” scheme, and sentenced to three years imprisonment for fraud and four months concurrent for possession of stolen goods. [2] Mr. Matthews and Ms. Briand have appealed their convictions and sentences. They have sought bail pending their appeals. The Crown Page: 2 consented to bail for Ms. Briand, but has opposed it for Mr. Matthews. This decision relates to Mr. Matthews’ bail application. [3] Criminal Code s. 679(3) governs bail applications pending appeal. It reads: In the case of an appeal [against conviction] the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (a) the appeal … is not frivolous, (b) he will surrender himself into custody in accordance with the terms of the order, and (c) his detention is not necessary in the public interest. [4] “[T]he appeal … is not frivolous” has been interpreted to mean that the appeal has arguable merit. See R. v. Parsons (1994), 117 Nfld. & P.E.I.R. 69, para. 11. The Crown concedes this. [5] That “detention is not necessary in the public interest” has been interpreted to have two aspects: (1) protection and safety of the public, and (2) whether the offender’s release would diminish public confidence in the administration of justice. See R. v. Parsons, supra, para. 34. [6] The Crown concedes that protection and safety of the public is not an issue. The Crown submitted that the offender’s release would diminish public confidence in the administration of justice, but did not persuade me of this. I do not see how Mr. Matthews’ release on bail pending appeal would undermine public confidence in the administration of justice. [7] The key issue is whether Mr. Matthews “will surrender himself into custody in accordance with [bail] terms”. The onus of proof for this, as for all requirements under s. 679(3), is on the applicant for bail. [8] As Wells, C.J.N. (as he then was) pointed out in R. v. Allen (2001), 158 C.C.C. (3d) 255 (NLCA) at paras. 54-55, it is not simply a matter of the Page: 3 applicant pointing out that he has turned up for all his court appearances. Rather, the applicant, by suitable evidence, must persuade the court that he will do so on this occasion. [9] The complication for Mr. Matthews is that he is an American citizen. He is not a Canadian, nor does he have any right to live in Canada. (By his own admission, he overstayed a visitors visa.) If he presents himself at the U.S. border, he will be granted entry to his native country. In that event, getting him back to Canada would require the difficult, time-consuming and expensive process of extradition. One would have to question whether this would be pursued by Canadian authorities in the circumstances of Mr. Matthews’ case. [10] Thus, if Mr. Matthews were to flee to the U.S., he might well be “safe” from Canadian justice. Being a fugitive is an unhappy state of affairs, but so is being in prison. There would be a great temptation for Mr. Matthews, literally, to put all this behind him by fleeing to the U.S., something that he could readily do if released on bail. [11] What does Mr. Matthews offer as evidence that he will not flee? First, he points out that he has abided by all bail terms, both before trial and between his conviction and sentencing. Second, he insists that he has committed no offence and is intent on seeing through the appeal so as to clear his name. Third, he points to his commitment to his wife, Ms. Briand, and their two children; he will not abandon them, he insists. [12] However, Ms. Briand is not a Canadian (so Mr. Matthews testified), but rather is a citizen of the French Republic. Their children are Canadians by virtue of having been born in Canada. She and Mr. Matthews have not lived long in Newfoundland. They have almost no assets here (or elsewhere, it seems). Ms. Briand is living with her parents in Grand Bank. (They are from St. Pierre, which given its closeness to Grand Bank might provide another avenue for flight, should Ms. Briand and Mr. Matthews head there.) If released on bail, Mr. Matthews would live with Ms. Briand, their children and her parents at the parents’ house in Grand Bank. [13] In the case of Ms. Briand, her parents have each provided a surety of $10,000 for her release on bail. Mr. Matthews says he does not know whether they would do the same for him. Page: 4 [14] One can only commend Mr. Matthews for his desire to be with his wife and children. However, a degree of skepticism is also warranted, as Mr. Matthews is essentially estranged from his children by an earlier marriage in the U.S. Having left one family behind, might he not do so again, especially when freedom in his own country is the prize? [15] It is difficult to fashion bail terms to prevent flight, given that it is possible to drive across the island, take the Gulf ferry and be at the US border with New Brunswick within about 24 hours. [16] I can think of only one thing that would give me a reasonable degree of confidence that Mr. Matthews would appear for his appeal. That is for Ms. Briand’s parents to provide sureties similar to those that they have provided for her. In that event, if Mr. Matthew flees, Ms. Briand’s parents will be out $20,000. Mr. Matthews would be living in their house and they would be aware quickly if he made a run for it. [17] Thus, I would grant an order for Mr. Matthews release on bail subject to terms similar to those for Ms. Briand (save there is no reference to surrender of a passport, as I was assured that Mr. Matthews has no passport, and Mr. Matthews would be required to call in daily to the RCMP). (1) He will keep the peace and be of good behaviour; (2) He will not leave the Province of Newfoundland and Labrador; (3) He will notify the RCMP at Marystown, Newfoundland and Labrador (a) if he opens a new website, and (b) if he opens a new bank account or a new account with any financial institution, and the location and type of the new account; (4) He will not engage in the provision of financial services to the public in any manner; (5) He will report to the RCMP at Marystown every Friday between 9:00 a.m. and 5:00 p.m., and call in daily between 2:00 p.m. and 5:00 p.m.; (6) He will reside at 29 Grandview Blvd., Grand Bank, Newfoundland and Labrador, and he will notify the RCMP in Marystown 48 hours in advance of any change of residence; and Page: 5 (7) Remy Briand and Bernice Briand, of Grand Bank will be sureties in the amount of $10,000 each. [18] Thus, whether or not Mr. Matthews is released on bail will depend on whether Ms. Briand’s parents are willing to provide sureties for him. [19] To hasten the hearing of the appeal, I would order that the preparation of the trial and sentencing transcripts be expedited. ______________________________ M. Rowe, J.A.