A Canadian-born lawyer convicted of fraud in Bermuda is seeking to re-litigate the case at his Law Society of Upper Canada disciplinary hearing.
In 2005, a Bermudian jury found Robert Martyn, now 49, guilty of conspiring to fraudulently obtain Bermudian status, a form of citizenship in the British overseas territories.
Doctored birth and marriage certificates that falsely traced the family’s roots to a man from the north Atlantic island backed up an application for the status by Martyn’s father.
Martyn, who had been working in Bermuda on work permits, was eventually granted the status on the strength of the claim, although authorities later revoked it after discovering the fraud.
Martyn’s defence team claimed the lawyer’s father was the one behind the fraud and that he was as much a victim of the deception as anyone else. But the jury didn’t believe that version of events and convicted Martyn, who never testified in his own defence at trial.
Now the law society wants to rely on the conviction and a summary of the facts of the case laid out by the Court of Appeal for Bermuda in dismissing Martyn’s appeal as it makes its argument that he engaged in conduct unbecoming a barrister and solicitor for his role in the fraud. It’s seeking to revoke his licence to practise in Ontario.
Martyn’s lawyer Ferhan Javed said that “would amount to a denial of natural justice.” On June 15, he told a law society disciplinary panel that admitting the conviction would be unfair because it would effectively amount to a finding of guilt on the conduct unbecoming charge and send the hearing into the penalty phase without giving Martyn an opportunity to rebut the allegation.
“Mr. Martyn should not be barred from raising a defence,” Javed said.
He argued that deficiencies in the jury system in Bermuda and the circumstances of Martyn’s trial necessitated re-litigation.
In addition, he claimed that any decision to extend the rules of practice and procedure and provisions of the Ontario Evidence Act to foreign convictions would be an unprecedented move for a law society panel.
“The issue is somewhat novel and requires the panel to probably go into uncharted territory,” Javed said.
According to Javed, Martyn had the jury process “thrust upon him” because there was no option for a trial by judge alone in Bermuda.
As a result, there were no judicial findings on his guilt or credibility and no reasons for the conviction. Bermuda law also permits the use of standbys, a process ruled unconstitutional in Canada.
According to Martyn’s factum filed on May 27, had he committed a similar offence in Canada, it wouldn’t have been a matter under the Criminal Code but the Citizenship Act.
In that case, he could be liable to a maximum fine of $1,000 if prosecuted summarily or one year in jail if the Crown proceeded by indictment.
But Danielle Smith, counsel for the law society, told the hearing panel it should admit the conviction. She noted the Bermudian jury required a higher standard of proof in the criminal case — “beyond a reasonable doubt” — than any hearing panel would require.
“Our position is that the criminal conviction is binding and cannot be re-litigated. It would be an abuse of process for him to be allowed to do so,” she said.
She said the similarities between the Canadian and Bermudian legal systems are striking given the Commonwealth heritage shared by both and that there are sufficient safeguards in place to ensure trials are fair on the island.
“This was the criminal justice system in Bermuda, not a kangaroo court,” she said.
The decision not to testify in his defence was Martyn’s, she said, and the maximum sentence of two years’ imprisonment gave him sufficient incentive to put his best foot forward in the case.
Martyn’s defence counsel at trial was a senior member of the Bermudian bar. The defence also didn’t raise any concerns about the jury during the trial or in his subsequent appeals, Smith said.
She argued there’s no right to trial by judge alone in Canada and that the practice of using standbys shouldn’t be enough to cast doubt on the conviction, Smith told the panel. In any case, there was no evidence they were used in Martyn’s case.
According to Martyn’s factum, he was called to the bar in Ontario in 1990, although he has never practised in the province. In 1996, he moved to Bermuda to work with a Canadian-owned company based there and lived there with his wife.
According to a decision by the Court of Appeal for Bermuda released in November 2006 and filed with the hearing, Martyn’s father made an application for Bermudian status from his home in Canada in mid-2000.
The application claimed his own father, Martyn’s grandfather, was William Martin, who was born in Sandys, Bermuda, in 1899.
The application also included a marriage certificate from 1935 that suggested Martin had moved to Ontario and settled there, again indicating his birthplace was Bermuda. Both documents were fakes.
“It was obvious that the father’s document was a forgery and could hardly have been manufactured without the son’s complicity,” wrote Sir Charles Mantell on behalf of the appeal court.
By August 2000, Martyn’s father had been granted status, paving the way for his own application. He also provided a declaration from his father asserting that he was domiciled in Bermuda at the time the lawyer was born. By March 2001, he, too, had Bermudian status.
That allowed Martyn to work without a work permit, purchase property, and hold shares in local companies without restrictions.
According to the appeal court decision, things began to unravel in 2003 when the woman who is now Martyn’s ex-wife tipped off the immigration department, which dug deeper into his application. Martyn was stripped of his status and charged with conspiracy to defraud.
At the trial in 2005, the Crown alleged Martyn had masterminded the fraud and that only he had benefited from the crime, while his defence insisted it was his father who had made the story up about his ancestry. An arrest warrant was issued for Martyn’s father, although he was never extradited for trial.
After a 12-day trial, a jury found Martyn guilty. He received a sentence of six months in jail, but the judge suspended it for 18 months.
“In my opinion, the acts of the accused were clever and calculating,” Bermuda Supreme Court Justice Carlisle Greaves said in court, according to a transcript. “It was indeed a well-planned and well-executed fraud.”
Martyn was later disbarred in Bermuda and left the country following his conviction. He now works in Nassau, Bahamas. His appeal, which raised a number of grounds that mostly centred around the judge’s charge to the jury, was dismissed in late 2006. Martyn was also refused leave to appeal to the Privy Council in England.
The law society got involved when a Canadian lawyer, Marlin Horst, brought the matter to its attention during Martyn’s trial. Horst had attended the University of Western Ontario with Martyn and later became social friends with him while working in Bermuda.
“Bermudians take their status very seriously, and it is big news if it is discovered that someone is claiming Bermuda status who does not have it,” Horst wrote in an e-mail to the law society in June 2005 that was filed with the hearing.
The LSUC panel has reserved its decision on the issue of applying the Bermuda conviction.