2016 QCCA 2046, 2016 QCCA 2046

Matteo c. R. 2016 QCCA 2046 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006191-165 (500-01-051050-117 SEQ. ACC. 004) DATE: December 13, 2016 PRESIDING: THE HONOURABLE NICHOLAS KASIRER, J.A. LINO PASQUALE MATTEO APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutor JUDGMENT [ 1 ] On June 2, 2016, after a trial by jury at which the Honourable Mr. Justice Pierre Labrie of the Superior Court presided, Lino Matteo was found guilty of one count of fraud, four counts of forgery and four counts of uttering forged documents.

The judge later sentenced him to eight years of imprisonment. Mr. Matteo has appealed the conviction. He now asks for judicial interim release pending the determination of that appeal, pursuant to sections 679(1) (

a) and 679(3) Cr.C . [ 2 ] The motion for judicial interim release is contested. [ 3 ] In the course of their respective arguments, both the appellant and the respondent referred me to the circumstances of one of the appellant’s co-accused, John Xanthoudakis, and the judgment rendered by my colleague Bich, J.A. on November 8, 2016 in which she granted his motion for judicial interim release and ordered his release subject to stated conditions. [1] Counsel for the respondent, who represented the Crown before my colleague, informs me that no review has been sought of Bich, J.A.’s judgment. [ 4 ] I hasten to say that while many issues considered by my colleague are similar to those I am called upon to decide here, her judgment in no way constitutes, in itself, a precedent requiring me to order the appellant’s release, nor does it create a presumption of any sort that the appellant has the right to the same order as that secured by his co-accused.

It is plain from the text of sections 679(1) and 679(3) Cr.C . that each person seeking judicial interim release faces the burden to show, in light of his or her own circumstances, why interim release is justified. This is no less true, as is the case here, for a co-accused who presents similar or even identical grounds of appeal to another co-accused in respect of the same criminal transactions and who received similar or identical sentences.

By its very nature, judicial interim release involves a case-by-case evaluation turning on the subjective circumstances of an individual applicant and the demonstration that he or she makes in respect of the three factors set forth in section 679(3) . *** [ 5 ] The conditions that the appellant must satisfy to justify interim release pending the determination of his appeal are well- known. He must establish, first, that his appeal is not frivolous ( s. 679(3) (

a) Cr.C .); second, that he will surrender himself into custody in accordance with the terms of the order ( s. 679(3) (

b) Cr.C .); and, lastly, that his detention is not necessary in the public interest ( s. 679(3) (

c) Cr.C .). [ 6 ] The respondent’s counsel submits, in particular, that the appellant has failed to establish that his detention is not necessary in the public interest and that the appeal is so weak as to be frivolous. Moreover, counsel was not prepared to concede that the appellant does not constitute a flight risk.

In other words, all three grounds set forth in section 679(3) Cr.C . are contested. *** [ 7 ] Has the appellant established that his grounds of appeal are not frivolous? [ 8 ] It bears recalling that the requirement is generally understood to be satisfied when the appellant shows that his or her grounds are defensible, rather than persuasive or convincing.

It is enough for the appellant to establish that the appeal is susceptible of reasoned argument and is not devoid of merit. [2] The judge called upon to decide an interim release application is not to weigh the merits of arguments as would the Court on the appeal proper, but merely to determine whether or not the grounds are arguable. [3] [ 9 ] In his amended notice of appeal, the appellant alleges errors of law under five main headings.

Before me, he concentrated his efforts on defending his grounds relating to the violation of his constitutional right to be tried within a reasonable time, those relating to the sufficiency of the judge’s instructions and his argument that the judge erred in his treatment of the ability of certain jurors to acquit their duties properly.

[ 10 ] First, he submits that the case management judge erred in law when he dismissed a motion for a stay of proceedings by reason of unreasonable delays that violated sections 7, 11(

b) and 24 of the Charter. Given the majority opinion in R. v. Jordan , [4] this ground is not frivolous. Counsel for the respondent urges that, as in Béliveau , [5] this appeal will be considered to be in the category of exceptional circumstances that justify a long delay. Deciding this matter will require a careful examination of the causes of the relevant delays associated with the proceedings and a consideration as to whether Béliveau applies on the facts of this case.

These questions will be sorted out on the merits as both parties plainly have defensible arguments to make in support of their respective positions. [ 11 ] I am also satisfied that the ground relating to the insufficient character of the judge’s instructions to the jury is not frivolous in that it is arguable as presented. The same may be said of the submission relating to the judge’s consideration of the ability of certain jurors, in the circumstances of the case, to carry out their duties. Counsel for the respondent sought to impugn these grounds of appeal with fragments from the trial transcripts.

She may have arguments to make that these submissions will ultimately fail, but her effort at this stage only confirmed my impression that the appellant’s grounds as disclosed in the amended notice of appeal are not frivolous. *** [ 12 ] Has the appellant shown that he will surrender himself in accordance with the terms of the order? [ 13 ] The appellant was granted bail subject to conditions throughout the lengthy proceedings in first instance. He was not found to have breached any of these conditions and there is no suggestion that he re-offended while on bail.

His counsel submits that he has sufficient roots in the community to suggest that he does not present a flight risk. He noted that the appellant has no passport and has had the same permanent address for over twenty years. Judges called upon to measure whether the requirement in section 679(3) (

b) is satisfied in any given case have consistently identified these factors as relevant to deciding whether an appellant will surrender himself or herself in accordance with the order. [6] [ 14 ] Counsel for the respondent filed an affidavit sworn by a police officer relating to a period of surveillance of the appellant that was undertaken during the trial.

The officer declared that on a day of the trial when the appellant had informed the presiding judge that he was unwell and had to absent himself from court, he had nevertheless left his home in the morning in the company of a person who had been called as a witness in the proceedings. It should be said that the appellant was not charged with breach after this event. [ 15 ] The respondent’s purpose in raising these facts is unclear.

Counsel suggested that this portion of the affidavit indicated at the very least that the appellant is not credible in his undertakings to the court, including the promise to surrender according to the terms of the order. In the absence of any charge of breach of conditions, I disagree. On the basis of the facts disclosed in the affidavit, that allegation is not made out to my satisfaction. [ 16 ] On balance, the appellant’s conduct while on bail during trial and his roots in the community indicate that he does not present a flight risk. The appellant has established that he satisfies section 679(3) (

b) Cr.C . *** [ 17 ] Has the appellant shown that his detention is not necessary in the public interest? [ 18 ] The appellant must establish that his detention need not be maintained to ensure public safety and that his interim release would not undermine the public’s confidence in the justice system. [7] [ 19 ] I agree with this statement of the applicable law made by my colleague Bich, J.A. sitting in chambers in O’Reilly v.

R. [8] : [7] I am also satisfied that the petitioner's motion for interim release meets the third condition set out in ss. 679(3) in that his detention is not necessary in the public interest, which is to be measured according to the possibility of a threat to public security and the necessity to maintain public confidence in the administration of justice […]. [8] As far as public security is concerned, it is worth noting that the very serious crimes of which the petitioner was convicted were nevertheless committed without any sort of violence.

The sentencing judge recognized this fact when she expressly refused to delay parole until half of the sentence be served ( s. 743.6 Cr.C . ). As mentioned earlier, the petitioner was free during the six years after his arrest and until July 2, 2014, when sentence was passed, and, in the meantime, he complied with all the conditions of his judicial release.

Were he to be released pending the appeal, there would be no threat to public security. [9] As far as public confidence in the administration of justice is concerned, two principles must be considered: judgments need to be enforced, certainly, considering that the presumption of innocence does not apply at this stage; judgments, however, may be erroneous – this is why there is a right to appeal and why s. 679 Cr.C . exists – and need not be enforced precipitously, without regard to the specific situation of the offender [references omitted].

In the present case, the seriousness of the crimes and the length of the sentence of imprisonment must certainly be considered. The age of the petitioner (81) is not irrelevant, but so are the facts that he decided to start his criminal career when he was in his seventies (thus fully aware of the risks of such an illegal undertaking), and that he was driven by greed alone.

Considering, however, the seriousness of the grounds of appeal, the absence of violence in the commission of the offences, the fact that the sentence will largely have been served by the time the appeal is heard, and, more generally all the circumstances hereinabove described, I believe that, on balance, detention is not necessary. [10] In Beugré v. R. [2011 QCCA 1788], my colleague Kasirer J.A. wrote that: [8] L'intérêt public commande, aussi, le maintien de la confiance du public envers l'administration de la justice [renvoi omis].

Il ne faut pas qu'une décision de remettre l'appelant en liberté banalise le sérieux des condamnations ou le tort que les victimes ont subi en l'espèce. Il ne faut pas, non plus, qu'une décision de remettre l'appelant en liberté soit comprise par le public comme une espèce d'absolution pour la peine que la Cour supérieure vient de lui imposer.

Je retiens le critère traditionnellement identifié par la jurisprudence à cette fin [renvoi omis]: la confiance dans le système de justice pénale du citoyen raisonnable, bien informé du processus judiciaire et des circonstances de l'affaire, serait-elle ébranlée par la mise en liberté de l'appelant à ce stade-ci des procédures? Je ne le

pense pas. [9] Si l'opinion publique peut être secouée par le sérieux des condamnations, je crois que le citoyen bien informé comprendrait que la détention de l'appelant, avec des moyens d'appels non frivoles et une fiche de bonne conduite de 33 mois entre son arrestation et son incarcération, n'est pas nécessaire dans l'intérêt public. [11] These comments apply here, where we have a “fiche de bonne conduite” of six years.

I am of the view that the incarceration of the petitioner, in the eyes of a well-informed public, would not affect confidence in the administration of justice, considering 1° all the circumstances of the present case, 2° that the petitioner will be subject to strict conditions of release, and 3° that, should his appeal be dismissed, he will then serve his sentence in its entirety. [ 20 ] Determining whether the public’s confidence in the administration of justice would be undermined by the interim release requires weighing the “enforceability” of a verdict, in particular one in respect of a serious offence, and the “reviewability” of the verdict on appeal, in particular where the appellant has apparently meaningful grounds of appeal to advance.

As the Court of Appeal for Ontario wrote in R. v. Farinacci , [9] “[t]he ‘public interest’ criterion in s. 679(3)(

c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.” [ 21 ] In addition, it is generally said that the measure of public confidence is that of a reasonably well-informed person, apprised of the fundamental orientation of the criminal justice system and the liberty-related values expressed in the law, including the Charter, and who is able to consider the circumstances of the case in a dispassionate manner. [10] [ 22 ] How are these principles to be applied in the instant case? [ 23 ] While counsel acknowledged that his client received a substantial sentence for his conviction, he recalled that the appellant was not convicted of a violent crime such that his interim release would not represent a threat to the community.

He says his grounds of appeal are sufficiently serious that public confidence in the justice system does not require his detention. Finally, the appellant’s unblemished record while on bail during the long trial, as well as the fact that he is fifty-four years old and has no prior convictions, further suggest that his detention is not required in the public interest. [ 24 ] The respondent answers that the appellant has been convicted of serious offences and that the global sentence of eight years imprisonment is a significant one.

These considerations suggest to the respondent that continued detention is appropriate both from the perspective of the public safety and the public confidence components of the criterion stated at section 679(3)(c). Moreover, the respondent views the grounds for appeal as insufficiently strong to justify interim release.

The respondent contends that they are so weak that a well-informed citizen would consider that the appellant’s interim release as compromising public confidence in the justice system. [ 25 ] Finally, the respondent submits that the fact that the appellant is currently facing a trial for alleged penal offences under securities legislation further suggests that detention is necessary in the public interest. [ 26 ] Has the appellant shown that his interim release would not be a threat to public security or to public confidence in the justice system? [ 27 ] First, the appellant’s argument that his on-going detention is not necessary in the public interest because his offences relate to non-violent crimes calls for comment.

It is true that fraud, even on the scale practised here, is a less-serious offence than murder, aggravated assault or trafficking of significant quantities of narcotics, all of which cause physical harm to victims. But the public interest consideration transcends the physical well-being of the public and some non-violent crimes may well be sufficiently serious to require detention under section 679(3)(c). [11] Interim release on appeal of a person convicted of a serious fraud may well, in some circumstances, pose a real threat to the financial security of members of the public.

In this case, the dimension of the fraud, the multi- million dollar losses it brought about, the fact that Cinar was a publicly-traded company such that many innocent investors lost money as well as the impact of the appellant’s conduct on public faith in the securities market, all give pause in this regard.

Moreover, the eight- year sentence and the characterization by the sentencing judge of the depth of the appellant’s personal implication in the fraud underscore the seriousness of the conviction. [ 28 ] Taking all the relevant factors into account, I am nevertheless of the view that the appellant has established that his detention is not necessary in the public interest. In the balance between enforceability and reviewability alluded to in the cases decided under section 679(3)(

c) Cr.C. , the immediate enforceability of the appellant’s conviction and sentence can legitimately yield to the temporary suspension of the sentence while the conviction is under review before this Court. [ 29 ] The fact that the appellant did not re-offend while on bail satisfies me that, notwithstanding the seriousness of the offence and the sentence, public security is not so threatened to the extent that his interim release should be denied. Moreover, the further penal charges, which have not yet been proved, do not justify his detention while awaiting his appeal in the present matter.

His counsel states that the events relating to these charges pre-date the trial and recalls that during the sixty-three months of his interim release his client was not charged with a new crime or a penal offence. I note further that the sentencing judge observed a “reduced risk” that the appellant would commit new offences.

I would add that a well-informed member of the public would take into account, as well, the fact that the appellant is fifty-four years old, has no prior convictions and that in the long period since proceedings in first instance commenced, he has not been charged with a breach of conditions or a new offence. [ 30 ] I have also weighed representations by counsel for the respondent that the grounds for appeal, even if they are considered to be defensible for the purposes of section 679(3) (

a) Cr.C . , are weak. I disagree. While the paucity of materials before me preclude saying more, the grounds of appeal are not so weak as to suggest that public confidence would be shaken if the appellant were released pending his appeal. This is especially true of the argument based on the unreasonable delay. [ 31 ] On balance, not only has the appellant shown that interim release does not pose a threat to public security, he has convinced me that the reasoned and well-informed member of the public would accept that detention is not required in order to maintain confidence in

the administration of justice. That confidence can be maintained, in my view, by granting bail, subject to the imposition of more stringent conditions on his interim release than those that obtained at trial. [ 32 ] In this latter regard, the parties disagreed on the amount of the deposit required as a guarantee that the appellant will comply with the conditions for his release. At trial the amount was $25,000. The appellant agrees that the amount could be increased to $30,000 given that he no longer benefits from the presumption of innocence.

The respondent proposes $150,000 without meaningful explanation for this very substantial increase. [ 33 ] Given the concerns counsel for the appellant expressed as to his client’s capacity to pay a substantial amount, as well as the lack of apparent risk that the conditions will not be respected, the respondent’s request is unreasonable. It might even be viewed as an effort to create a financial obstacle to the appellant’s interim release when all the other conditions in sections 679(3) Cr.C . have been satisfied.

If bail would be unavailable to the appellant only for lack of funds, a well-informed member of the public would, in my view, see this as unfair and as potentially undermining confidence in the justice system. I would therefore set the amount of deposit at $30,000. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 34 ] GRANTS the motion for judicial interim release pending the outcome of the appeal; [ 35 ] ORDERS the release of the appellant subject to the following conditions: i.

A recognizance in the amount of $30,000, with deposit, by a third party, as a guarantee that the appellant will comply with the conditions set out hereinafter; ii. The appellant shall keep the peace, be of good behaviour and attend court whenever required; iii. The appellant shall reside at [...], Montreal, Quebec [...] and not change his address without prior authorization of this Court or one of its judges; iv. The appellant shall not attempt to obtain another passport or any other travel document ; he shall also abstain from having in his possession any passport or other travel document; v.

The appellant shall not leave the Province of Quebec; vi. The appellant shall report to the Sûreté du Québec (1701 Parthenais St., Montreal), every week, on Wednesday and Saturday and sign the register; this condition is suspended when a Wednesday coincides with a statutory holiday and the appellant shall then report to the Sûreté du Québec on the next working day; vii. The appellant shall abstain from communicating in any manner with Hasanain Panju, Ronald Andrew Weinberg and John Xanthoudakis, except in the presence of counsel in order to prepare his appeal; viii.

The appellant shall abstain from communicating in any manner with Robert Daviault, Mario Ricci and Thomas Muir; ix. The appellant shall abstain from serving as an officer or director of any publicly-traded company; x. The appellant shall abstain from trading directly or indirectly on any securities or acting in any capacity (including that of adviser) in financial markets except in relation with his personal registered retirement savings plan or registered income plan; xi. The appellant shall abstain from participating directly or indirectly in the preparation, circulating or publishing of any prospectus; xii.

The appellant shall surrender himself into the custody of the Ste-Anne-des-Plaines Regional Reception Centre (246 Montée Gagnon, Sainte-Anne-des-Plaines, Quebec, J0N 1H0) on the day before the hearing of his appeal by this Court or within any delay prescribed by this Court at any time; xiii. Should the appellant discontinue his appeal, he shall immediately surrender himself into the custody of the Ste-Anne-des-Plaines Regional Reception Centre. [ 36 ] ORDERS that an undertaking to adhere to these conditions be given by the appellant to a justice of the peace assigned to such matters before he is released.

NICHOLAS KASIRER, J.A. Mtre George Calaritis

For the appellant Mtre Céline Bilodeau Director for Criminal and Penal Prosecutions For the respondent Date of hearing: December 9, 2016