COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Doherty and Favreau JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Demitry Papasotiriou and Mladen Michael Ivezic
Appellants
James Lockyer and Jessica Zita, for the appellant, Demitry Papasotiriou
Richard Litkowski, for the appellant, Mladen Michael Ivezic
Karen Papadopoulos and Manasvin Goswami, for the respondent
Heard: December 6, 7 and 8, 2022
On appeal from the convictions entered on June 3, 2018, by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a jury.
I
overview
1On March 2, 2011, Allan Lanteigne was murdered in the front foyer of his home on Ossington Avenue. He shared that home with his husband, the appellant, Demitry Papasotiriou. Mr. Papasotiriou was living in Greece in March 2011.
2The Crown alleged that Mr. Papasotiriou and his lover, the appellant, Mladen Ivezic, had decided to murder Mr. Lanteigne. On the morning of March 2, 2011, Mr. Papasotiriou sent a text to Mr. Lanteigne from Greece, telling him to go straight home from work that night and to call Mr. Papasotiriou immediately when he arrived home. Mr. Lanteigne went straight home. When he arrived there some time shortly after 5:30 p.m., Mr. Ivezic was lying in wait for him. He struck Mr. Lanteigne on the head with a heavy object several times, just as Mr. Lanteigne entered the home. Mr. Lanteigne’s body was first seen lying in the foyer at about 3:15 p.m. on the next afternoon, March 3, 2021. The police attended at the scene shortly afterward.
3After a lengthy jury trial, Mr. Papasotiriou and Mr. Ivezic were both convicted of first degree murder. The Crown’s case was circumstantial. Both appellants called a defence. Mr. Ivezic testified on his own behalf. The jury deliberated over several days.
4On his appeal, Mr. Papasotiriou submits his conviction is unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, should be quashed and an acquittal entered. Alternatively, Mr. Papasotiriou submits that Mr. Ivezic’s conduct during the trial effectively deprived Mr. Papasotiriou of his right to a fair trial, and resulted in a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. On this ground of appeal, Mr. Papasotiriou asks that the conviction be quashed and a new trial ordered on the charge of first degree murder.1
5Mr. Ivezic raises several grounds of appeal, some relate to the admissibility of certain evidence and others to parts of the jury instructions. He also maintains that counsel, who represented him for parts of the pretrial motions, provided ineffective legal assistance, rendering his trial a miscarriage of justice. Mr. Ivezic asks this court to quash his conviction and order a new trial on the first degree murder charge.2
6I would dismiss the appeals.
II
the evidence
(i) The relationships
7Mr. Papasotiriou met the victim, Allan Lanteigne, in 2004. They married a few months later.
8In 2006, Mr. Papasotiriou and Mr. Lanteigne purchased a home on Ossington Avenue in Toronto. The appellant and his family funded the purchase and substantial renovations.
9Mr. Papasotiriou was a lawyer who did primarily real estate related work. Mr. Lanteigne worked in the accounting department at the University of Toronto. He also regularly took on catering jobs in the evenings and on weekends. By all accounts, Mr. Lanteigne was a very hard working person.
10Mr. Papasotiriou and Mr. Ivezic met on a men’s website some time in 2008-2009. Mr. Ivezic had a wife and family. He and Mr. Papasotiriou began an extramarital relationship. Mr. Lanteigne became aware of the relationship, but did not seem inclined to terminate his relationship with Mr. Papasotiriou, or leave the matrimonial home on Ossington Avenue. Mr. Lanteigne had become quite attached to the home and enjoyed improving the décor and buying expensive things for the home.
11Mr. Ivezic visited the home on Ossington Avenue after he and Mr. Papasotiriou began their relationship. Mr. Papasotiriou assured Mr. Ivezic that he could stay in the Ossington Avenue home whenever he wanted to and for as long as he wanted. He told Mr. Ivezic that he would get a key to the house for him.
12Mr. Lanteigne knew Mr. Ivezic visited the home on Ossington Avenue and that Mr. Ivezic and Mr. Papasotiriou had an intimate relationship. According to Mr. Ivezic, he and Mr. Lanteigne became friends. There was, however, no evidence of any communications between Mr. Lanteigne and Mr. Ivezic. There was also some evidence that Mr. Lanteigne became quite upset when it appeared to him that he was providing money to Mr. Papasotiriou so that Mr. Papasotiriou could pay for Mr. Ivezic’s trip to Europe to be with Mr. Papasotiriou.
(ii) Mr. Papasotiriou moves to Europe
13In late 2009, Mr. Papasotiriou invited Mr. Ivezic to join him over the Christmas holidays on a trip to Europe. The two men went to Switzerland for several days in December 2009. This effectively ended the appellant’s marriage to Mr. Lanteigne. Mr. Lanteigne continued to live in the Ossington Avenue home. By this time, he was paying the mortgage and the household expenses.
14Mr. Papasotiriou returned to Toronto briefly in late December 2009. He moved to Switzerland in February 2010 to pursue a doctorate in law. That plan changed quickly, however, and by May 2010, Mr. Papasotiriou had moved to Athens. His father lived in Greece and owned property in a suburb of Athens known as Nea Ionia. Mr. Papasotiriou told Mr. Lanteigne that his father was prepared to give him that property so that he could develop it and sell it for a profit.
15The development and sale of the Nea Ionia property was a focus of many of the communications between Mr. Papasotiriou and Mr. Lanteigne between May 2010 and Mr. Lanteigne’s murder in March 2011. In many of the communications, Mr. Papasotiriou requested money from Mr. Lanteigne, either for his living expenses, or for various costs which he said were associated with the Nea Ionia property. Unbeknownst to Mr. Lanteigne, Mr. Papasotiriou’s father was paying all of the expenses relating to that property.
16Mr. Lanteigne often expressed reluctance to provide the funds needed to meet Mr. Papasotiriou’s constant demands. In the end, however, Mr. Lanteigne usually came up with the requested money.
17Except for a brief return visit to Toronto in November 2010, Mr. Papasotiriou stayed in Athens from May 2010 until several months after Mr. Lanteigne’s murder in March 2011. It does not appear that Mr. Papasotiriou was gainfully employed while living in Athens, or that he had access to funds, other than the money that was given to him by his father or Mr. Lanteigne.
18Mr. Lanteigne’s reluctance to provide the money requested to Mr. Papasotiriou increased as time went on in 2010. Mr. Lanteigne was working two jobs and paying the household-related expenses and the mortgage on the Ossington Avenue house. Although Mr. Lanteigne expressed added reluctance to advance funds to Mr. Papasotiriou, he continued to do so.
19In February 2011, Mr. Papasotiriou invited Mr. Lanteigne to come to Greece to live with him. He told Mr. Lanteigne that the Nea Ionia property was up for sale and that his father was going to give him an additional property. Mr. Papasotiriou told Mr. Lanteigne that the two of them could use that property to grow olives, which could be sold at considerable profit. He suggested that the two could work the farm together in what would be “like a permanent vacation”. Mr. Lanteigne expressed skepticism about this proposal. He also told Mr. Papasotiriou he was nearing the limit on his credit cards.
20Mr. Papasotiriou was also in regular contact with Mr. Ivezic while Mr. Papasotiriou was in Greece between May 2010 and March 2011. The tone of the communications indicated that they had a strong physical and emotional connection.
(iii) The “dilly dally” email
21In the three or four days immediately before the murder on March 2, 2011, Mr. Papasotiriou repeatedly emailed Mr. Lanteigne, asking him to call. During the same time period, Mr. Papasotiriou was in regular contact with Mr. Ivezic, who was in the Toronto area.
22On the day of the murder (March 2, 2011), in the afternoon (Toronto time), Mr. Papasotiriou sent an email to Mr. Lanteigne. This email became known as the “dilly dally” email. In the email, Mr. Papasotiriou told Mr. Lanteigne to “call me from home when you get there”. He went on to tell Mr. Lanteigne that he did not want to be called during the evening hours in Toronto, as it would be very early in the morning in Athens. Mr. Papasotiriou told Mr. Lanteigne:
Just call me from home and don’t dilly dally on your way home buying shoes and shirts and crystal balls.
23It was about a thirty-five-to-forty-minute walk from Mr. Lanteigne’s place of employment to his home on Ossington Avenue. On March 2, 2011, he left work at about 5:00 p.m.
24A friend of Mr. Lanteigne’s, who expected to have dinner with him that night, called at about 6:07 p.m., but did not receive any answer. On the Crown’s theory, Mr. Lanteigne had been attacked and murdered by 6:07 p.m.
(iv) The murder
25The alarm system at the Ossington Avenue home was breached and then disarmed by entering the access code at 5:19 p.m. The Crown claimed that Mr. Ivezic entered the home at this time using a key given to him by Mr. Papasotiriou and the code also provided by Mr. Papasotiriou to deactivate the alarm. The Crown contended that Mr. Ivezic reset the alarm at 5:35 p.m. and waited for Mr. Lanteigne.
26The alarm was breached at 5:37 p.m. The Crown argued that Mr. Lanteigne breached the system when he entered the home at 5:37 p.m. The Crown alleged that Mr. Ivezic immediately attacked and murdered Mr. Lanteigne before he could deactivate the alarm. The key to the front door was found adjacent to Mr. Lanteigne’s hand when his body was found the next day. The alarm sounded for about four minutes, beginning at 5:37 p.m. Two police officers drove by the home, saw nothing unusual, and cleared the alarm as a false alarm.
27There were no signs of any forced entry or attempted burglary at the Ossington Avenue home. Mr. Lanteigne still had his wallet and there were no indications of any attempt to rob Mr. Lanteigne.
28The Crown relied on expert evidence identifying DNA found under the fingernails of Mr. Lanteigne’s right hand as, in all probability, Mr. Ivezic’s DNA. The quantity of the DNA found under Mr. Lanteigne’s fingernails made it unlikely that the DNA got there by casual contact. In his evidence, Mr. Ivezic testified that he had lunch with Mr. Lanteigne on February 28, 2011, and that his DNA may have somehow got under Mr. Lanteigne’s fingernails when they were eating their lunch together in the car.
(v) The motive
29The Crown argued that Mr. Papasotiriou had a strong financial motive for murdering Mr. Lanteigne. He was the beneficiary on a $2,000,000 life insurance policy on Mr. Lanteigne’s life. He was also the beneficiary of Mr. Lanteigne’s survivor pension benefits, and was entitled to the proceeds of Mr. Lanteigne’s RRSP.
30Although Mr. Ivezic had no direct financial interest in Mr. Lanteigne’s death, the Crown argued that he would benefit indirectly when he and Mr. Papasotiriou became a couple after the murder. In May 2011, about two months after the murder, Mr. Ivezic left his family and flew to Athens to live with Mr. Papasotiriou.
31Mr. Papasotiriou, with Mr. Ivezic’s help, moved quickly to realize on the various death benefits. Mr. Ivezic contacted some of the entities holding the relevant funds. At times, Mr. Ivezic identified himself with a false name and, at other times, he falsely claimed to be a lawyer.
(vi) Mr. Ivezic’s alibi
32Mr. Ivezic testified and denied killing Mr. Lanteigne. He offered an alibi for the time of Mr. Lanteigne’s death. According to him, he had been out computer shopping with his son the previous evening. They were purchasing his son’s first computer. Mr. Ivezic testified that he met with a business associate the next day, the day of the murder, in the early afternoon, in Aurora, north of Toronto. He drove home and picked up his son at the University of Toronto between 5:15 p.m. and 5:30 p.m. They drove home and ate together. After dinner, his son worked on installing software on his new computer.
33There was independent evidence confirming the purchase of the computer on March 1, 2011. Mr. Ivezic’s son, who according to Mr. Ivezic was with him either in the car or at their home at the time of the murder, did not testify.
(vii) Mr. Papasotiriou’s defence
34Mr. Papasotiriou did not testify. He did, however, call Eleni Patsianidi, a civil engineer in Greece, who worked for Mr. Papasotiriou’s father and was involved in the development of the Nea Ionia property. She gave evidence that the appellant had entered into an agreement to sell the property on February 28, 2011. Ms. Patsianidi identified documents pertaining to the sale. Those documents included the sale price and a provision for a deposit. There was no evidence, however, as to what, if anything, the appellant was to receive from the deposit or the other proceeds of the sale. The property belonged to his father and his father had funded the development of the property. The transaction eventually fell through.
III
Mr. Papasotiriou’s grounds of appeal
A. Was Mr. Papasotiriou’s conviction for first degree murder an unreasonable verdict?
(i) The possible verdicts
35To properly address Mr. Papasotiriou’s allegation that his conviction on the charge of first degree murder was unreasonable, it is necessary to begin with the relationship between the possible verdicts available as against both Mr. Papasotiriou and Mr. Ivezic.
36The Crown maintained that Mr. Papasotiriou and Mr. Ivezic agreed to kill Mr. Lanteigne. In furtherance of that agreement, Mr. Ivezic actually killed him. Mr. Papasotiriou aided and abetted Mr. Lanteigne’s murder, in part, by sending the “dilly dally” email. On the Crown’s theory of the case, Mr. Ivezic was guilty of a planned and deliberate first degree murder as a perpetrator, and Mr. Papasotiriou was guilty of a planned and deliberate first degree murder as an aider and abettor.
37The trial judge correctly told the jury that there were only two possible verdicts in respect of Mr. Papasotiriou. The jury could find him guilty of first degree murder, or not guilty. The trial judge correctly told the jury that there were three options with respect to Mr. Ivezic. He could be convicted of first degree murder, second degree murder, or acquitted.
38The trial judge told the jury that Mr. Papasotiriou’s guilt was entirely contingent upon the jury finding Mr. Ivezic guilty of a planned and deliberate first degree murder. If the jury was not satisfied that Mr. Ivezic had committed first degree murder, it could not find Mr. Papasotiriou guilty of any crime.
39If the jury found Mr. Ivezic guilty, that did not mean the jury had to find Mr. Papasotiriou guilty. The jury could find Mr. Ivezic guilty of first or second degree murder and still acquit Mr. Papasotiriou. On that view of the case, the jury would be satisfied beyond a reasonable doubt that Mr. Ivezic murdered Mr. Lanteigne, but not that he was acting pursuant to any plan hatched with Mr. Papasotiriou.
40Mr. Ivezic does not challenge the reasonableness of the verdict returned against him. Nor could he. The Crown presented a formidable case pointing to Mr. Ivezic as the murderer. The reasonableness of the jury’s verdict as against Mr. Papasotiriou must be considered from the premise that the jury concluded that Mr. Ivezic committed a planned and deliberate first degree murder of Mr. Lanteigne. The reasonableness inquiry, as applied to Mr. Papasotiriou, asks – could a reasonable jury, properly instructed, conclude that Mr. Papasotiriou aided and abetted Mr. Ivezic in the planned and deliberate murder of Mr. Lanteigne?
(ii) The applicable law
41Jury verdicts, returned with a simple one or two-word statement – guilty; or not guilty – are recognized as the gold standard of criminal law verdicts. Juries do, however, make mistakes. This court’s power to review the reasonableness of a jury’s verdict provides an important safeguard against those mistakes. There are jury verdicts that, despite the absence of legal error or unfairness in the trial process, simply cannot stand on the evidence. Justice requires that an appellate court be able to intervene, set aside the conviction, and enter an acquittal, the only proper verdict on the evidence: see R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 34.
42The court’s power to review the reasonableness of a jury’s guilty verdict under s. 683(1)(a)(i) of the Criminal Code is circumscribed. The question for the jury is not whether a properly instructed jury, acting reasonably, could have acquitted. The Court of Appeal can intervene only if satisfied that no properly instructed jury, acting judicially, could reasonably have found the appellant guilty: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 74-80; and R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2.
43In arriving at its reasonableness determination, this court reviews and, to a limited extent, reweighs the evidence, bringing to bear its judicial experience as applied to the kind of evidence that was before the jury: Biniaris, at para. 36. Judicial experience teaches that some kinds of evidence can be less reliable and probative than they might appear to a reasonably intelligent jury engaged in, what for the vast majority of jury members is a unique fact-finding experience: Biniaris, at para. 40.
44For example, in reviewing the reasonableness of a jury verdict based on eyewitness identification, an appellate court will bear in mind the well-established risk that apparently reliable eyewitness testimony given by a credible witness may well be wrong: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673.
45The guilty verdicts returned by the jury at this trial depended on the jury’s assessment of a large body of circumstantial evidence. Circumstantial evidence is not inherently untrustworthy, and is in no way “second class” evidence. However, judicial experience with fact-finding based on circumstantial evidence demonstrates that juries faced with a large body of credible circumstantial evidence may be inclined to go beyond legitimate inferences to assumptions and speculation so as to fill in the gaps and create a coherent narrative from the evidence. Appellate courts have long acknowledged the risk that a jury may overreach in exercising its inference drawing powers. That knowledge informs an appellate court’s review of the reasonableness of a verdict based on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 26-29.
(iii) The review of the evidence
46This court had the benefit of the trial judge’s summary of the evidence on Mr. Papasotiriou’s directed verdict application: see R. v. Papasotiriou, 2018 ONSC 1994.3 The court also received extensive summaries of the evidence in the factums and detailed oral argument. My review of the evidence indicates that the case for the Crown against Mr. Papasotiriou was far from overwhelming. In fact, he was discharged at the preliminary inquiry and directly indicted by the Attorney General. I am, however, satisfied that it was open to a reasonable jury, properly instructed, to convict Mr. Papasotiriou. It must be borne in mind that the jury was told it must acquit Mr. Papasotiriou unless it was satisfied beyond a reasonable doubt that Mr. Ivezic had committed the murder. In other words, the reasonableness of the verdict as against Mr. Papasotiriou proceeds from the premise that his lover, Mr. Ivezic, committed the first degree murder of Mr. Lanteigne. Mr. Papasotiriou’s close connection to the actual killer can reasonably affect the inferences to be drawn from the circumstantial evidence connecting Mr. Papasotiriou to the crime.
47A jury could draw the following inferences:
The marital relationship between Mr. Papasotiriou and Mr. Lanteigne was over. Mr. Papasotiriou was in a new relationship with Mr. Ivezic;
Potential financial disputes between Mr. Papasotiriou and Mr. Lanteigne loomed on the horizon, particularly in relation to the Ossington Avenue home;
Not only was the marital relationship failing, but the personal relationship between Mr. Papasotiriou and Mr. Lanteigne was on a downward spiral. Mr. Papasotiriou was using Mr. Lanteigne to fund his life in Greece. He was doing so by misrepresenting his needs for funds in connection with the Nea Ionia property. Mr. Lanteigne was growing more resistant to providing the funding for Mr. Papasotiriou and seemed to be losing trust in Mr. Papasotiriou. Mr. Papasotiriou was aware that Mr. Lanteigne’s credit cards were near their limits, and that Mr. Lanteigne was suggesting that any further dealings between them be evinced by a written contract. A jury could conclude that, from Mr. Papasotiriou’s perspective, Mr. Lanteigne’s use to him was diminishing;
Mr. Papasotiriou and Mr. Ivezic were in constant communication in the weeks prior to the homicide. Both were interested in a more permanent personal relationship. Mr. Ivezic cut ties with his family and moved to Europe to live with Mr. Papasotiriou within a couple of months of Mr. Lanteigne’s death; and
Mr. Papasotiriou stood to gain well over $2,000,000 from Mr. Lanteigne’s death. Given Mr. Papasotiriou’s lifestyle and his seemingly constant need for money, access to over $2,000,000 would permit Mr. Papasotiriou to continue to lead the lifestyle Mr. Lanteigne had funded in part in the year prior to his death.
48In summary, had Mr. Papasotiriou not been charged with Mr. Lanteigne’s murder, Mr. Lanteigne’s death would have left Mr. Papasotiriou a rich man, able to live the lifestyle he enjoyed in Europe with Mr. Ivezic, his new love interest. Mr. Lanteigne’s death would have also freed Mr. Papasotiriou from any financial entanglements with Mr. Lanteigne, particularly in respect of the Ossington Avenue home.
(iv) Analysis
49The Crown relied on the inferences to be drawn from the “dilly dally” email. The trial judge attached significant importance to that evidence. In his reasons for dismissing the directed verdict application, he said, at paras. 43-45:
In my view, the emails between Mr. Lanteigne and Mr. Papasotiriou are capable of showing that Mr. Papasotiriou wanted Mr. Lanteigne to be home at a particular time — which just happened to be the particular time that you would be entitled to find that Mr. Ivezic had entered the home with the specific purpose of killing Mr. Lanteigne.
In other words, it would be open to a jury to find that Mr. Papasotiriou instructed Mr. Lanteigne to be home at a particular time, which was unusual, in order to speak on the phone, which was also unusual. In my view, it would be open to the jury to find that it was more than a mere coincidence that Mr. Ivezic was in the home at that exact time.
50I agree that it was reasonably open to the jury to find that Mr. Papasotiriou’s email was an attempt to get Mr. Lanteigne to head home directly after work on March 2, 2011, putting him at home at about 5:30 p.m. The jury could also conclude that Mr. Ivezic was waiting for Mr. Lanteigne when he arrived home. The jury could conclude that it was more than a mere coincidence that Mr. Papasotiriou, the primary financial beneficiary of Mr. Lanteigne’s death, should send instructions to Mr. Lanteigne, directing him to go to the exact place, at the exact time, where, as it turned out, the killer, Mr. Papasotiriou’s lover, was waiting for Mr. Lanteigne.
51Counsel for Mr. Papasotiriou submits that there is nothing special about the “dilly dally” email when it is put in the context of the rest of the communications between Mr. Papasotiriou and Mr. Lanteigne. Counsel argues that the requests in the emails between February 28 and March 2, 2011, that Mr. Lanteigne call Mr. Papasotiriou, are innocently explained by the sale of the Nea Ionia property on February 28, 2011. Mr. Papasotiriou had been working towards this sale for some time.
52It was open to the defence to argue that Mr. Papasotiriou was anxious to speak to Mr. Lanteigne because the property had just been sold. In considering that inference, the jury would no doubt take into account that Mr. Papasotiriou made no mention in any of his emails after February 28, 2011 that the property had been sold. This includes an email on March 1, 2011, in which Mr. Papasotiriou told Mr. Lanteigne that he wanted to speak to him about “the projects here and your involvement”. It is strange that if Mr. Papasotiriou really wanted to speak to Mr. Lanteigne about the “projects”, he would not have mentioned the sale of one of the “projects” a day earlier.
53The connection, if any, between the emails and the sale of the property was for the jury to determine. On the evidence, the jury could reasonably have determined that the sale of the Nea Ionia property, which was not mentioned in the emails, had nothing to do with the sending of the emails.
54Counsel also submits, that in assessing the reasonableness of the verdict, this court should consider the evidence that Mr. Papasotiriou’s financial difficulties, if any, were about to be solved by the sale of the Nea Ionia property. Counsel for Mr. Papasotiriou submits that this significantly diminishes the financial motive evidence relied on by the Crown.
55The Nea Ionia property was to be sold on February 28, 2011 for EUR 450,000, with a deposit of EUR 45,000. Although Mr. Papasotiriou was identified as the owner of the property in the documents, there was no evidence about what amount, if any, Mr. Papasotiriou stood to gain from the sale of the property. His father had funded the purchase and development. Mr. Papasotiriou led no evidence about the benefit to him, if any, from the sale. The possibility of some unquantified benefit to Mr. Papasotiriou from the sale of the property was not necessarily any basis upon which to discount the evidence of his very substantial financial motive.
56In summary, the “dilly dally” email could, when considered in the context of the rest of the evidence, reasonably bear the inference urged by the Crown. There were other possible explanations for the email. However, it was for the jury to determine the inference to be drawn from the “dilly dally” email, after placing that email in the context of the entirety of the evidence, including the other possible explanations for the email.
57I conclude that the jury, acting judicially, could have been satisfied that the guilt of the appellant was the only reasonable conclusion available on the evidence considered as a whole. The verdict was not unreasonable.
B. Did Mr. Ivezic’s conduct during the trial render Mr. Papasotiriou’s trial unfair?
58Mr. Ivezic was represented by counsel when the trial began in November 2017. Counsel was removed from the record on February 5, 2018 and the trial continued. Mr. Ivezic represented himself for the remainder of the Crown’s case, Mr. Papasotiriou’s defence, and part of his own defence. He retained counsel on April 16, 2018 and the trial proceeded to the verdicts on June 3, 2018.
59Counsel for Mr. Papasotiriou submits that Mr. Ivezic’s conduct during the two and one-half months he was unrepresented rendered Mr. Papasotiriou’s trial unfair and resulted in a miscarriage of justice. Counsel submits that when self-represented, Mr. Ivezic repeatedly interfered with the orderly conduct of the trial, causing several significant delays. He ignored the directions of the trial judge and engaged in repetitive, unhelpful and, often, irrelevant questioning of witnesses.
60For example, he cross-examined one Crown expert for almost six days with no apparent purpose for most of the questioning. Counsel submits that Mr. Ivezic repeatedly and improperly sought to cross-examine witnesses on matters that the trial judge had ruled inadmissible. This conduct led to further interruptions in the trial and significantly disrupted the orderly flow of the evidence.
61Counsel also contends that on at least one occasion, Mr. Ivezic’s questions went beyond being irrelevant, repetitive and potentially opening the door to the admission of evidence prejudicial to Mr. Papasotiriou. Counsel points to one line of questioning by Mr. Ivezic that may well have been viewed by the jurors as racist. I will not reproduce the relevant questions here. It will suffice to say that a reasonable jury could have taken a racist connotation from the questions. Two of the jurors were Black.
62The trial judge, who maintained an even-handed control of the proceedings throughout the trial, became exasperated with Mr. Ivezic’s conduct on occasion, almost always when the jury was not present. It is reasonable to assume that members of the jury had a similar reaction to that of the trial judge.
63Counsel argues that Mr. Papasotiriou was inextricably linked to Mr. Ivezic. They were jointly charged with a planned and deliberate murder. Mr. Ivezic’s conviction was an essential first step in the Crown’s case against Mr. Papasotiriou. Counsel submits that the frustration, if not outright antipathy the jury must have felt toward Mr. Ivezic by the end of the trial, would inevitably have spilled over to its consideration of the case against Mr. Papasotiriou, his co-accused, alleged co-conspirator, and former lover.
64I accept counsel’s submission that the conduct of Mr. Ivezic could, as a matter of law, render Mr. Papasotiriou’s trial unfair, or at least create the appearance of unfairness, such that the conviction of Mr. Papasotiriou would constitute a miscarriage of justice: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69, 72-74, per LeBel J. (dissenting in part, but not on this point).
65However, with the active assistance of counsel for the Crown, Mr. Papasotiriou, and amicus, the trial judge was able to keep this trial on the fairness rails.
66It is germane to the appellant’s argument that counsel for Mr. Papasotiriou, who diligently protected his interests throughout the trial, did not request either severance or a mistrial, despite Mr. Ivezic’s conduct. While it is true that neither a mistrial, nor severance was a particularly palatable remedy, counsel’s decision to proceed with the trial tells me that counsel, who was very well-placed to assess the impact of Mr. Ivezic’s conduct on the jury, was satisfied that the fairness of Mr. Papasotiriou’s trial had not been compromised by Mr. Ivezic’s conduct.
67In concluding that counsel’s position at trial afforded some insight into the impact of Mr. Ivezic’s conduct on the fairness of Mr. Papasotiriou’s trial, I bear in mind that Mr. Ivezic’s presence was not all bad for Mr. Papasotiriou. It was open to the jury to find that Mr. Ivezic murdered Mr. Lanteigne, acting on his own so he could clear the way for a relationship with Mr. Papasotiriou. The Crown arguably had a strong case that Mr. Ivezic murdered Mr. Lanteigne. To the extent that Mr. Ivezic’s conduct in court may have shown him to be an ill-tempered, strong-willed person, determined to get what he wanted regardless of the applicable rules, Mr. Ivezic’s conduct during the trial may have assisted at least one aspect of Mr. Papasotiriou’s defence.
68The trial judge took several steps aimed at minimizing any adverse effect on Mr. Papasotiriou from Mr. Ivezic’s conduct during the trial. For example, when it became apparent that Mr. Ivezic would not be guided by the trial judge’s ruling on the scope of his cross-examination, the trial judge took the extraordinary step of vetting all of Mr. Ivezic’s questions in the absence of the jury. He also appointed amicus to assist with evidentiary issues. These steps went a long way to limiting improper questioning of witnesses by Mr. Ivezic in the presence of the jury.
69The trial judge also used various procedural techniques to mitigate any harm caused by Mr. Ivezic’s conduct. He adjusted the court’s sitting schedule to make up, at least to some extent, for the delays caused by Mr. Ivezic. The trial judge continually sought input from all counsel as to how to minimize delay and any risk of improper questioning by Mr. Ivezic. Counsel for Mr. Papasotiriou provided valuable assistance in that regard.
70The trial judge also told the jury that the length of the trial could play no role in their deliberations. He repeatedly told the jury that Mr. Ivezic’s conduct and his exchanges with the trial judge could play no role in their deliberations. He even, charitably, characterized Mr. Ivezic’s conduct as the product of a lack of legal training. Finally, the trial judge repeatedly told the jury that it must deal with each accused separately, based on the evidence admissible against each accused and the legal principles applicable to each accused.
71There is one argument made by counsel for the appellant which I cannot accept. He argues that the delays caused by Mr. Ivezic’s conduct may have resulted in Mr. Papasotiriou’s decision that he would not testify and prolong the trial even further. This is a speculative argument. There is no evidence that Mr. Papasotiriou’s decision that he would not testify was anything other than a fully informed one, made with the assistance and advice of competent counsel.
72Mr. Ivezic’s conduct after he became self-represented and until he retained counsel later in the trial caused problems for everyone involved in the trial. No doubt, Mr. Papasotiriou may have preferred to have faced the jury on his own. In the end, however, I am satisfied that the joint efforts of all involved, and in particular the trial judge, secured a fair trial for Mr. Papasotiriou.
73I would dismiss Mr. Papasotiriou’s appeal.
IV
mr. Ivezic’s grounds of appeal
A. The alternate suspect rulings
74Mr. Ivezic and Mr. Papasotiriou brought two applications prior to trial, seeking the admission of alternate suspect evidence. One application involved a man named, Jarvis Belding, and the other, a person identified as Branco Krieger. The evidence was ruled inadmissible on pretrial motions. Only Mr. Ivezic challenges those rulings on appeal. I am satisfied the motion judges properly excluded the evidence. I am also in substantial agreement with their reasons for doing so.
(i) The evidence relating to Mr. Jarvis Belding (R. v. Papasotiriou-Lanteigne, 2017 ONSC 5607, per Nordheimer J. (as he then was))
75Mr. Belding and Mr. Lanteigne had been in a long-term relationship which ended in 1999, several years before Mr. Papasotiriou married Mr. Lanteigne, and approximately 11 years before the murder. Evidence on the motion suggested that the relationship between Mr. Belding and Mr. Lanteigne had been violent at times, and that their break-up was acrimonious. However, for several years before Mr. Lanteigne’s murder, he and Mr. Belding had been on good terms. There was some indication that Mr. Belding was hoping to revive their relationship in light of Mr. Lanteigne’s break-up with Mr. Papasotiriou and Mr. Papasotiriou’s decision to live in Europe.
76Nordheimer J., at para. 7, was properly critical of the nature of the evidence produced by the accused on the motion. Mr. Ivezic filed an affidavit which contained the relevant factual allegations. Virtually all of the allegations in Mr. Ivezic’s affidavit were hearsay in respect of matters on which he could not have had any firsthand knowledge. Mr. Papasotiriou, who would have had personal knowledge of at least some of the relevant facts, did not file an affidavit setting out his version of those events, but instead purported to “adopt” the hearsay assertions in Mr. Ivezic’s affidavit without asserting the truth of the underlying facts.
77Nordheimer J., at paras. 11-12, referred to the controlling case law from the Supreme Court of Canada: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at paras. 24-26; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 47.He correctly identified the existence of a “sufficient connection between the third party and the crime” as an essential prerequisite to the admissibility of alternate suspect evidence. As stressed in Grant, at para. 25:
Without a sufficient connection between the third party and the crime, the evidence of a known third party suspect is simply not logically relevant.
78The defence attempted to forge the required “sufficient connection” between Mr. Belding and the murder in three ways. Nordheimer J. considered and rejected all three. I will address each briefly.
79The defence suggested that there was evidence on the motion from which it could be inferred that Mr. Belding had been in the Ossington Avenue home the night before the murder and remained there until the next afternoon when Mr. Lanteigne returned home from work. This allegation rested on a statement made by a neighbour to the police. However, in that statement, the neighbour also made it clear that he was not certain of the exact date, nor the gender of the people he saw in the Ossington Avenue home. The snippet from this witness’s statement, relied on to support the alternate suspect theory, did not amount to evidence of anything that could possibly connect Mr. Belding to the murder.
80The defence also suggested that the evidence on the motion supported the inference that Mr. Belding had knowledge of the nature of Mr. Lanteigne’s injuries at a time when it could reasonably be inferred that only someone involved in the murder would have that knowledge. This assertion was based on a police statement given by a witness named Claudia Ammar.
81Nordheimer J. considered this evidence, at paras. 14-18. He described the contents of Ms. Ammar’s police statement as “ambiguous” and noted that part of the statement was contradicted by Ms. Ammar’s testimony under oath at the preliminary inquiry. Nordheimer J. further indicated that neither Ms. Ammar, nor Mr. Belding, who also testified at the preliminary inquiry, were questioned about any conversation that they may have had. Nordheimer J. ultimately decided that the ambiguous second-hand references in Ms. Ammar’s statement to the police did not provide any evidentiary basis upon which Mr. Belding could be properly identified as a legitimate alternate suspect in the murder. I agree.
82The defence also argued that the evidence of the animus between Mr. Belding and Mr. Lanteigne during and at the breakup of their relationship supported the inference that Mr. Belding had a motive to murder Mr. Lanteigne.
83Evidence of physical confrontations and an acrimonious breakup in a relationship, some 11 years before the murder, are not capable, standing on their own, of lending any credence to the inference of an ongoing animosity toward the former partner: see e.g. Grandinetti, at paras. 51-52. Any inference of animus or motive becomes all the more tenuous in the face of evidence indicating that Mr. Belding and Mr. Lanteigne had been on friendly terms for several years prior to the murder.
84I am satisfied that the evidence put forward on the motion was not capable of showing any connection between Mr. Belding and the murder. The defence put forward only a theory that Mr. Belding had committed the murder. It offered no evidence reasonably capable of connecting him to the murder.
(ii) The alternate suspect ruling in respect of Branco Krieger (R. v. Papasotiriou-Lanteigne, 2017 ONSC 6251, per Goldstein J.)
85The second alternative suspect put forward by the defence was a person identified by the name, “Branco Krieger”. The defence maintained that Mr. Lanteigne and someone, who identified as Branco Krieger, had a sexual relationship and participated in a sexual fetish involving one or both men wearing diapers. It is unclear whether anyone named Branco Krieger actually existed, or whether someone used that name in the virtual world.
86Goldstein J., the trial judge, heard this pretrial motion to admit the evidence relating to the person identified as Branco Krieger. He dismissed the motion on an application by the Crown without conducting a full hearing for two reasons. First, he found that the motion had no merit on its face and, second, the materials filed on the motion were so inadequate and so contrary to the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (“Rules”), as to warrant dismissal of the motion for non-compliance with the Rules.
87Counsel for Mr. Ivezic did not focus his submissions on the admissibility of the evidence relating to the person identified as Branco Krieger. Instead, he emphasized the manner in which counsel had prepared and presented the motion in support of his argument that Mr. Ivezic received ineffective legal assistance at trial. I will consider that part of the argument when I address the ineffective assistance of counsel claim. At this stage, I address only the evidentiary issue.
88Goldstein J. rejected the evidence pertaining to Branco Krieger as an alternate suspect for a myriad of reasons: see e.g. at paras. 43-62. All of the reasons advanced by the motion judge are valid. I will refer to only one.
89As observed by the motion judge, there was absolutely no evidence that the person identified as Branco Krieger was in the Ossington Avenue home when the murder occurred, or at any time in the days or weeks leading up to the murder. Nor was there any evidence of any contact between the person identified as Branco Krieger and Mr. Lanteigne. The defence contention that a photo of a person’s torso found on Mr. Lanteigne’s computer was a photo of Branco Krieger’s torso taken in the Ossington Avenue home the night before the murder was based on a combination of speculation and inadmissible opinions offered by Mr. Papasotiriou in his affidavit.
90The absence of any connection between the person identified as Branco Krieger and the murder justified the motion judge’s finding that the motion had no merit on its face. The motion was properly dismissed.
B. The admissibility of the evidence of Mr. Lanteigne’s lifestyle (R. v. Papasotiriou-Lanteigne, 2018 ONSC 1453, per Goldstein J.)
91At trial, Mr. Ivezic, who was acting for himself at this stage in the proceedings, sought to introduce evidence that Mr. Lanteigne was sexually promiscuous and engaged in a sexual fetish which involved adult men wearing diapers. Mr. Ivezic submitted that the proffered evidence demonstrated that Mr. Lanteigne led an inherently dangerous lifestyle and exposed himself to potentially dangerous and violent people. Mr. Ivezic argued that the evidence of Mr. Lanteigne’s lifestyle was relevant to the possibility that Mr. Lanteigne was killed by someone who he had met in the course of his many and varied sexual encounters.
92Goldstein J. refused to admit what he described as the “high risk lifestyle” evidence. He held, at paras. 2 and 23, that the probative value of the evidence was “very low” and “substantially outweighed by the prejudicial effect”.
93If anything, the trial judge overstated the potential probative value of the evidence. In my view, it had none. The inference urged by Mr. Ivezic was predicated on the assumption that because Mr. Lanteigne engaged in a certain sexual fetish, he would necessarily be associating with dangerous, violent people while participating in that fetish. This is not an inference based on common sense or logic, but rather an assumption based on stereotyping about how people with certain sexual preferences are inclined to behave: see Matthew Gourlay et al., Modern Criminal Evidence, ed by Brian H. Greenspan and Justice Vincenzo Rondinelli (Toronto: Emond Montgomery Publications Ltd., 2022), at pp. 61-63.
94Counsel for Mr. Papasotiriou took a different tack in arguing that the “lifestyle” evidence should be admitted. Counsel submitted that the Crown’s evidence tended to show Mr. Papasotiriou as an unfaithful, conniving individual, using Mr. Lanteigne for his own purposes and, in particular, to fund his lifestyle in Europe. Counsel submitted that on the Crown’s evidence, Mr. Lanteigne might appear to be a loyal, hardworking, naïve and gullible victim of Mr. Papasotiriou’s predatory conduct. Counsel maintained that the evidence of Mr. Lanteigne’s sexual promiscuity and tastes could balance what would otherwise be a skewed image of Mr. Lanteigne presented to the jury.
95This argument is untenable. The evidence counsel refers to involving Mr. Papasotiriou’s conduct was admissible circumstantial evidence, which ultimately, when considered with the totality of the evidence, was logically capable of implicating Mr. Papasotiriou in the murder. The evidence of Mr. Lanteigne’s sexual activities had no such probative connection to any material issue at trial. The fact that the proffered evidence may have shown Mr. Lanteigne to be less loyal, more worldly, and less likeable than the evidence presented by the Crown, did not make the evidence admissible.
C. The disclosure issues relating to the DNA evidence
96The Crown led evidence at trial that DNA found under Mr. Lanteigne’s fingernails was, in all probability, the DNA of Mr. Ivezic. In pretrial proceedings and at trial, Mr. Ivezic challenged the DNA evidence as fabricated. He claimed a broad conspiracy to “frame” him by replacing the material actually found under Mr. Lanteigne’s fingernails with material containing the DNA of Mr. Ivezic. According to Mr. Ivezic, the conspiracy involved the police, the Crown, personnel at the Centre of Forensic Sciences (“CFS”), and personnel at the National DNA Databank (“NDDB”).
97Mr. Ivezic makes two arguments concerning disclosure in relation to the DNA evidence. First, he submits that relevant material was not disclosed to the defence. Second, he argues that he was denied procedural fairness when the trial judge did not give him an opportunity to make further submissions on the DNA-related issues before proceeding with the relevant evidence in front of the jury. Mr. Ivezic argues that he was prejudiced because he was self-represented at the time, and had been told by the trial judge that the matter would be revisited before a ruling was made. He submits that he was denied the right to make argument in support of his claim for further disclosure.
98Mr. Ivezic has consistently maintained that documentation and materials relevant to the DNA results were not produced to him. He has not, however, produced any evidence capable of supporting this claim. Moreover, Mr. Ivezic chose, prior to the appeal, to bring a motion under s. 683(1) of the Criminal Code before a panel of this court seeking an order directing that various people be cross-examined in aid of Mr. Ivezic’s contention that evidence relevant to the DNA testing had not been disclosed as it should have been. A panel of this court dismissed the motion, holding that Mr. Ivezic had not brought forward any evidence that any agency had failed to produce documentation relevant to the DNA testing: R. v. Ivezic, 2020 ONCA 621, at paras. 23-28.
99The Crown submits that a panel of this court has determined that all material information pertaining to the DNA sample was disclosed to the appellant. Counsel contends that this court has no jurisdiction to revisit that determination.
100There is merit to the Crown’s contention. In my view, a litigant cannot simply, as of right, place an issue before a panel of this court if that issue has been decided in the same appeal by a different panel. At times, the appellate process in criminal matters seems to have become interminable. “Do overs” in front of differently constituted panels cannot become an accepted part of that process.
101That is not to say that this court never has jurisdiction to reconsider a decision made by a different panel on a s. 683(1) motion. However, the interests of finality and judicial efficiency demand that this court should grant leave to reconsider a prior decision made by a panel only if the appellant can make out a strong case that reconsideration is necessary to avoid a miscarriage of justice. Arguments predicated entirely on the correctness of the first panel’s decision will not clear that hurdle. However, significant new information, not available when the first panel heard the s. 683(1) motion, may provide a basis for a reconsideration of the same issue on the appeal proper: see R. v. J.M., 2021 ONCA 735, at paras. 32-34.
102Mr. Ivezic submits that the record before this court is much more exhaustive than the record before the s. 683(1) panel. The appeal record is certainly larger. However, the appellant has not pointed to anything of significance that is in the appeal record which was not available on the s. 683(1) motion. I see no reason to reconsider the prior panel’s determination that the appellant had failed to show that the Crown did not disclose material referable to the DNA sample that should have been disclosed.
103The procedural unfairness argument turns on the effect of the trial judge’s failure to give Mr. Ivezic a chance to further address disclosure questions before hearing the relevant evidence. The judge had indicated he would return to submissions before making a ruling, but did not do so.
104It seems clear from the record that the trial judge’s failure to invite further submissions was inadvertent. He did not refuse to hear further submissions, he merely forgot to invite further submissions. There was nothing stopping Mr. Ivezic from requesting an opportunity to make further submissions, if indeed he wanted to do so. The trial record reveals that Mr. Ivezic was an active participant in the proceedings when representing himself.
105Further submissions could not possibly have advanced Mr. Ivezic’s position. The trial judge determined there was no missing disclosure. This court reached the same conclusion on the s. 683(1) hearing. Nothing new has been put before this panel. The procedural fairness argument comes down to the submission that the appellant was denied due process when the trial judge inadvertently failed to invite him to make further submissions on what was a hopeless application for disclosure of non-existent material. The trial judge’s inadvertent failure to invite further submissions did not result in a miscarriage of justice.
D. Alleged errors in the jury instructions
(i) The “exclusive motive” instruction
106At trial, Mr. Ivezic argued that someone had stayed in the Ossington Avenue home the night before Mr. Lanteigne’s death. He further alleged that this person was still in the home when Mr. Lanteigne returned from work at about 5:30 p.m. the next day and that this person killed Mr. Lanteigne.
107The trial judge put the defence theory to the jury:
If you accept Mr. Ivezic’s theory that there was another person in the house that night before the murder, and that this person had the opportunity to kill Mr. Lanteigne, you may, but need not, conclude that this person was the murderer. There’s no evidence before you that there was an unknown person with motive to kill or an animus against Mr. Lanteigne. That said, I want to caution you that Mr. Ivezic is not required to prove anything. He is not required to prove that someone else was in the house the night before the murder. If, however, you have a reasonable doubt about whether Mr. Ivezic killed Mr. Lanteigne based on this theory, you must find Mr. Ivezic not guilty.
108The appellant submits that this instruction effectively told the jury that only Mr. Ivezic and/or Mr. Papasotiriou had a motive to kill Mr. Lanteigne. I do not read the instruction that way. In putting the theory of the defence to the jury, the trial judge quite properly observed that there was no evidence of any unknown person in the home who had a motive to kill Mr. Lanteigne. This was an accurate and appropriate observation, given the position taken by the defence.
109Mr. Ivezic contends that the impugned instruction “effectively reversed the burden of proof”. This submission fails in light of the specific instruction on the burden of proof provided in the context of the motive instruction. The trial judge told the jury, “Mr. Ivezic is not required to prove anything”. The instruction on burden of proof, as applied to motive, was clear and correct.
(ii) The instruction on the failure to call Mr. Ivezic’s son in the relation to the alibi
110Mr. Ivezic testified that he was with his son, Joshua, at the time of the murder. Joshua did not testify.
111The trial judge told the jury that if it believed Mr. Ivezic’s evidence that he was elsewhere when the murder occurred, it must acquit. He next told the jury that even if it did not believe Mr. Ivezic when he said he was elsewhere, it was obliged to acquit if that evidence raised a reasonable doubt in their mind. Finally, he told the jury that even if the jury rejected outright Mr. Ivezic’s evidence that he was elsewhere, that it could convict only if satisfied he was guilty beyond a reasonable doubt, based on the rest of the evidence that they accepted.
112The trial judge then told the jury:
I want to caution you about one other thing associated with Mr. Ivezic’s assertion of an alibi. Ordinarily an accused person is under no obligation to testify. No adverse inference should be drawn against a person who chooses not to testify. It sometimes happens, however, that an accused person asserts an alibi and does not call a witness who could support the alibi. This has happened here. Mr. Ivezic has not called Joshua Ivezic as an alibi witness. You may take that into account when assessing the credibility of the alibi.
113The trial judge gave the above instruction, despite submissions from counsel for Mr. Ivezic, joined by amicus, that, while the Crown could argue the failure to call Joshua undermined the credibility of the alibi, the trial judge should not instruct the jury that it could take Joshua’s failure to testify into account in assessing the alibi.
114Trial judges will, as a rule, avoid telling jurors they may take into account the failure of either the Crown, or the defence, to call a certain witness. There are many variables at play which counsel will take into account when deciding whether to call a witness. Many of those variables are not known to the jury and some cannot possibly be shared with the jury: R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C (2d) 65 (Ont. C.A.), at pp. 67-68.
115There is, however, no hard and fast rule that juries can never be told that they may take into account the failure of the Crown or the defence to call a witness when assessing the positions advanced by either the Crown or the defence. In some circumstances, where one side or the other fails to call an important witness, some comment by the trial judge about the effect of the failure to call that witness may be appropriate. The failure of the defence to call an important alibi witness is one situation in which trial judges have instructed juries that they may take into account the failure to call the alibi witness when assessing the credibility of the alibi: R. v. Rooke (1988), 1988 CanLII 2946 (BC CA), 40 C.C.C. (3d) 484 (B.C.C.A.), at pp. 517-18.
116The evidence of Joshua was potentially very important evidence on the alibi defence. According to Mr. Ivezic’s testimony, his son could give direct evidence placing Mr. Ivezic far from the murder scene at the relevant time. His son could also lend credence to Mr. Ivezic’s evidence of the narrative surrounding the alibi advanced in his testimony.
117Given the importance of Joshua’s alibi evidence, and the centrality of that evidence to the alibi, there was a logical basis upon which the trial judge could exercise his discretion in favour of instructing the jury that it could take into account the failure to call Joshua as a witness when assessing the alibi: Rooke, at p. 515.
118I also see no error in the contents of the instruction provided by the trial judge. He put his instruction in permissive terms and did not tell the jury that it was required to draw any adverse inference from the absence of the son’s evidence. Nor, in light of his strong reasonable doubt instruction specifically targeting the defence of alibi, could this part of the instruction have misled the jury on the burden of proof. The trial judge was also careful to frame the instruction regarding the absence of any evidence from the son as relevant only to the jury’s assessment of the alibi. The trial judge did not suggest that the absence of the son’s evidence had any broader role to play in determining Mr. Ivezic’s guilt. Finally, the instruction was brief and cannot be said to have highlighted or overemphasized the absence of the son’s testimony.
(iii) Did the trial judge adequately relate the evidence to the position advanced on behalf of Mr. Ivezic?
119Mr. Ivezic submits that the jury instruction failed to adequately distill and present the complex evidence placed before the jury in a manner that would assure the jury understood the positions advanced by Mr. Ivezic and how the evidence related to those positions. The governing principles are well known and need not be repeated here: see e.g. R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 9-19.
120This was a long trial. However, from Mr. Ivezic’s vantage point, the legal and factual issues were not particularly complex. The verdict with respect to Mr. Ivezic turned essentially on whether the Crown proved that he bludgeoned Mr. Lanteigne to the death in the foyer of the Ossington Avenue home. If the Crown proved that Mr. Ivezic was the killer, he was guilty of murder and, on the evidence in this case, in all probability guilty of first degree murder.
121The trial judge put the position of Mr. Ivezic to the jury in some detail. He reviewed the relevant evidence. He specifically instructed the jury that certain evidence was not admissible against Mr. Ivezic. He explained the defence position in relation to the alarm system in the Ossington Avenue home.
122There is no doubt that the trial judge could have said more about the evidence and its relationship to the positions advanced on behalf of Mr. Ivezic. It is equally true that the trial judge could have said more about the Crown’s case. Trial judges are not obliged to reargue the case for either side. Nor are trial judges obliged to address each and every piece of evidence that may have some significance to a position advanced by one of the parties at trial. The failure to say everything that could have been said does not constitute a reversible error: Daley, at paras. 55-58; R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, at paras. 159-60; and R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 233.
123I also accept counsel’s observation that parts of the trial judge’s instructions may have involved a somewhat detailed review of aspects of the evidence that were not particularly significant to the outcome of the case. The references did not, however, make the instructions overly complex or difficult to follow. The instructions may have been longer than necessary. But that is not a reversible error.
124There was no objection to the manner in which the trial judge put Mr. Ivezic’s defence to the jury. Mr. Ivezic was represented by senior, experienced counsel when the trial judge gave his instructions. The failure to object to a charge is not determinative of the sufficiency of the charge, and does not foreclose objection on appeal.
125The failure to object is, however, a consideration on appeal. Its importance will vary with the nature of the objection advanced for the first time on appeal. If the objection is a purely legal one, for example, a claim that the judge misstated the elements of the offence, the failure to object may have little significance. If, however, the objection raised for the first time on appeal is based on the manner in which the trial judge presented the defence, or related the evidence to their position, counsel’s failure to object at trial can become very important in assessing the adequacy of the instruction. No one knows better than counsel what is and is not important to the defence position, and whether that position has been properly put to the jury. Counsel’s failure to object, especially to the manner in which the defence is put to the jury, is particularly important when counsel, as in this case, had the opportunity to review the proposed instruction before it was given: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at para. 52; R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 36-40, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283; and R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 88-89, leave to appeal refused, [2010] S.C.C.A. No. 263.
126The trial judge fairly and accurately instructed the jury on the position advanced by Mr. Ivezic and related the evidence to that position.
E. The ineffective assistance of counsel claim
(i) Overview
127The appellants were jointly represented by Susan von Achten (“S.A.”) for about four months during the pretrial proceedings. Mr. Ivezic alleges that her representation was incompetent and resulted in a miscarriage of justice, entitling him to a new trial. Mr. Papasotiriou does not join in this ground of appeal.
128Crown counsel does not attempt to defend the competence of all aspects of S.A.’s representation on the pretrial motions. Crown counsel submits, that even if parts of S.A.’s representation fell below the competence standard, that conduct did not undermine either the reliability of the verdict, or the appearance of the fairness of the trial.
(ii) The chronology of counsel’s representation
129A chronology of S.A.’s representation of Mr. Ivezic and Mr. Papasotiriou in the course of the proceedings is helpful in assessing the ineffective assistance of counsel claim. S.A. acted for Mr. Ivezic between November 2012, when a warrant was issued for his arrest, and the completion of the preliminary inquiry in September 2014. Mr. Papasotiriou was separately represented.
130Mr. Ivezic discharged S.A. in July 2015, indicating that he might retain her again at some later date. In July 2016, with the trial date rapidly approaching, Mr. Ivezic retained S.A. for a second time. The trial was adjourned to September 2017 to accommodate counsel’s schedule. S.A. was not representing Mr. Papasotiriou at this stage in the proceedings.
131In November 2016, Crown counsel became aware that, in April 2016, Mr. Papasotiriou had retained S.A. to act for him in a civil matter involving litigation over the Ossington Avenue home. Mr. Papasotiriou had also retained S.A. in August 2016 to attend at the police station with him when he made a criminal complaint against his uncle. After raising conflict of interest concerns with S.A. to no avail, Crown counsel brought a motion to remove S.A. as counsel of record for Mr. Ivezic in the murder trial.
132Mr. Ivezic strongly opposed the Crown’s motion. He filed an affidavit indicating that he had given S.A. permission to act for Mr. Papasotiriou in the matters relating to the litigation and the complaint to the police. He had no concerns about S.A. acting for Mr. Papasotiriou in these matters and believed it would help his defence as it might provide funds for the criminal defence. Mr. Papasotiriou also had no concerns about S.A. acting for Mr. Ivezic. In fact, Mr. Papasotiriou and Mr. Ivezic wanted S.A. to jointly act for both of them.
133In April 2017, Nordheimer J. granted the Crown’s motion and ordered S.A. removed as counsel for Mr. Ivezic: R. v. Papasotiriou-Lanteigne, 2017 ONSC 2207.
134Within about two months of the order of Nordheimer J., removing S.A. as counsel for Mr. Ivezic, S.A. on behalf of both Mr. Ivezic and Mr. Papasotiriou brought a motion for an order allowing her to act for them both in the murder trial. Mr. Ivezic and Mr. Papasotiriou were adamant that they wanted S.A., and no one else, to defend them on the charge. They insisted that there was no possible conflict of interest. Both assured the court that they had received independent legal advice on the issue of joint representation. Mr. Ivezic and Mr. Papasotiriou also agreed that if, for any reason, S.A. could not act for them both, she could not act for either. In June 2017, Nordheimer J. granted the motion and allowed S.A. back on the record to act for both Mr. Ivezic and Mr. Papasotiriou: see R. v. Papasotiriou-Lanteigne, 2017 ONSC 3449.
135S.A. acted for Mr. Ivezic and Mr. Papasotiriou between June 2017 and October 2017. Various pretrial motions were heard during this time period. S.A.’s conduct for some of those motions is the subject matter of the ineffective assistance of counsel claim.
136On October 18, 2017, a day before jury selection was to begin, Mr. Papasotiriou discharged S.A. Pursuant to the order of Nordheimer J., S.A. could no longer act for Mr. Ivezic and was removed from the record. The trial was adjourned and proceeded about a month later with both appellants represented by separate counsel. Mr. Papasotiriou was represented by counsel throughout the trial. Mr. Ivezic was represented by counsel for parts of the trial, and self-represented for other parts.
(iii) The legal principles
137Before turning to the specific factual allegations, which counsel relies on to demonstrate that Mr. Ivezic did not receive effective representation at trial, it is helpful to briefly review the applicable legal principles. Canada has a deep and well-developed jurisprudence relating to ineffective assistance of counsel claims brought on appeal in criminal proceedings.
138There are three components to an ineffective assistance claim. The appellant must establish the facts on which the claim is based (the factual component). Counsel must further demonstrate that the legal assistance provided was incompetent, in that counsel’s performance fell below the standard expected of a reasonably competent counsel, in the circumstances (the performance component). Finally, the appellant must show that counsel’s incompetence resulted in a miscarriage of justice. A miscarriage will occur if there is a reasonable probability that the outcome of the trial would have been different had the appellant received adequate legal assistance: R. v. Leslie, 2021 MBCA 29, 403 C.C.C. (3d) 113, at para. 35, citing R. v. Aulakh, 2012 BCCA 340, 295 C.C.C. (3d) 315, at para. 68; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35, at pp. 62-64, leave to appeal refused, [1996] S.C.C.A. No. 347. Counsel’s incompetence may also so detract from the fairness, or the appearance of the fairness, of the trial process as to result in a miscarriage of justice: Joanisse, at pp. 62-63.
139Recently, in R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419, the court referred to the standard required to establish a miscarriage of justice based on the appearance of unfairness as “high”. The court went on:
[T]he defect must be “so serious that it shakes public confidence in the administration of justice.” [Citations omitted.]
140The ultimate inquiry on appeal is not whether counsel performed competently, but whether counsel’s performance resulted in a miscarriage of justice. Ineffective assistance claims are best approached by first determining whether counsel’s conduct led to the kind of prejudice which would render the verdict a miscarriage of justice: R. v. G.B.D., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 49.
141Mr. Ivezic submits that he suffered both kinds of prejudice as a result of S.A.’s incompetence. He submits that the impact of her incompetence on the reliability of the verdicts, and the appearance of the fairness of the trial, taken together, produced a miscarriage of justice. Mr. Ivezic refers to four specific incidents, which occurred in the pretrial proceedings in support of this proceeding. I will deal with each separately, while recognizing that it is the cumulative effect of counsel’s conduct that must ultimately be assessed.
(a) The motion to adduce evidence identifying Branco Krieger as an alternate suspect
142As outlined above, Goldstein J. summarily dismissed this motion because of the inadequate nature of the material put before him, and S.A.’s failure to comply with the applicable Rules. Goldstein J. was highly critical of the preparation and presentation of the motion.
143Goldstein J.’s criticism was entirely warranted and I will not repeat it here. Her preparation and presentation of this motion fell below what would be expected of a reasonably competent lawyer in the same circumstances.
144S.A.’s incompetence on the motion on its own, however, does not render the subsequent trial a miscarriage of justice. I can see no possible prejudice to Mr. Ivezic as a consequence of counsel’s incompetence.
145There was no evidentiary basis for the admission of the Branco Krieger evidence. Different counsel at trial made no attempt to revive the motion or adduce additional evidence. Finally, appellate counsel, despite his admirable industry in the preparation of this appeal, puts forward nothing new to suggest that there is any evidence existing anywhere which would lend any substance to the claim that the person identified as Branco Krieger may have killed Mr. Lanteigne.
146S.A.’s incompetent preparation and presentation of what was a meritless motion could not have affected the reliability of the verdict ultimately returned at trial.
147I also see no connection between S.A.’s inadequate representation on the motion and the ultimate fairness of the trial, or the integrity of the trial process. Apart from S.A.’s incompetence in presenting the motion, the reality is that the trial proceeded as it should have. The jury never heard anything about Branco Krieger as a potential alternate suspect. Nor should they have.
(b) The alibi defence
148Mr. Ivezic submits that S.A. failed to properly prepare Joshua to testify in support of the alibi defence. He points to S.A.’s delegation of certain tasks to a paralegal, including attendance with Joshua at a police interview, as conduct amounting to incompetence.
149This submission does not demonstrate ineffective assistance. S.A. did take several steps to investigate and corroborate the alibi. She formally disclosed the alibi in a timely fashion and filed the notice of alibi well before trial. Nor, in my view, did it amount to incompetence when she assigned a paralegal, who also happened to be a good friend of the family, to attend at the police interview with Joshua.
150Any shortcomings in her preparation of Joshua as an alibi witness did not have anything to do with Joshua’s failure to testify. Some time prior to trial, Joshua told S.A. that he did not wish to testify in his father’s defence. S.A. had hoped to persuade him that he should do so by the time the matter got to trial. S.A., of course, was no longer acting for Mr. Ivezic when the matter went to trial.
151Because S.A. was not acting for Mr. Ivezic at trial, she played no role in any decision as to whether he would be called as a witness. Although Mr. Ivezic acted for himself during part of the trial, he had counsel at the beginning and the end of the trial. Joshua was never subpoenaed, and no steps were taken to secure his attendance at trial. One of Mr. Ivezic’s lawyers at trial described the potential alibi evidence as “not strong”, perhaps explaining why Joshua was not called as a witness.
152Mr. Ivezic has not established that the decision not to call Joshua had any connection to any conduct by S.A. in respect of the preparation of Joshua to give evidence. The obvious inference is that Joshua could not, or would not, give evidence that could assist the appellant in advancing his alibi defence.
(c) The motion to remove Crown counsel
153Prior to trial, S.A. brought a motion to remove Crown counsel from the trial, advancing more than 40 grounds in support of the motion. The allegations alleged serious criminal misconduct against Crown prosecutors and the police involved in the investigation and prosecution of Mr. Ivezic. Nordheimer J. dismissed the motion as without any merit: R. v. Papasotiriou-Lanteigne, 2017 ONSC 5337. He observed, at para. 17:
I do not intend to further discuss the contents of Mr. Ivezic’s affidavit. I have provided the above outline in order to show that, for the most part, Mr. Ivezic’s complaints about the conduct of Crown counsel (and of the police) are drawn from his opinions and beliefs that are, in turn, based almost entirely on conjecture and speculation. None of that amounts to evidence. At the same time, the respondents have not advised me [of] what evidence they can obtain, or will provide, if their motion to remove Crown counsel proceeds to a full hearing or how that evidence would assist in proving the central allegations upon which their allegation is based.
154Unjustified attacks on the integrity of Crown counsel and the police have no role to play in the proper defence of criminal allegations. In some cases, those attacks will constitute professional misconduct.
155The ineffective assistance of counsel claim, however, does not depend on whether S.A. could be properly censured by the Law Society for bringing the motion. The motion, as ill-advised as it was, had no impact on the ultimate conduct of the trial. The jury was certainly never aware of the motion. The trial judge further preserved the integrity of the trial by prohibiting the Crown from using Mr. Ivezic’s affidavit that he had filed on the motion to remove Crown counsel for the purposes of cross-examining Mr. Ivezic at trial.
156Mr. Ivezic submits that the decision to seek the removal of Crown counsel prejudiced his defence in that he was required to disclose his defence in the affidavit filed in support of the motion to remove Crown counsel. It is clear that Mr. Ivezic had made public, in various ways, his many allegations against the prosecution, particularly in respect of the DNA evidence, long before S.A. brought the motion to remove Crown counsel from the trial. Nothing was revealed in those affidavits that had not already been revealed in prior proceedings relating to disclosure of issues. The motion to remove Crown counsel had no impact on Mr. Ivezic’s fair trial rights, or the reliability of the verdict ultimately returned by the jury.
(d) The conflict of interest issue
157As outlined above, in the fall of 2016, Crown counsel became aware that S.A. had acted for Mr. Papasotiriou in civil litigation relating to the Ossington Avenue home, and in respect of a report to the police of alleged sexual abuse on Mr. Papasotiriou by an uncle. The Crown successfully brought a motion to remove S.A. as counsel for Mr. Ivezic on the murder trial. Subsequently, S.A., on behalf of Mr. Ivezic and Mr. Papasotiriou, brought an application to permit her to act for both on the murder trial. Mr. Ivezic and Mr. Papasotiriou insisted there was no conflict and that only S.A. could effectively represent them. Both said they had received independent legal advice.
158Given the positions advanced by Mr. Ivezic and Mr. Papasotiriou, Nordheimer J. permitted joint representation. He stressed, however, that, if for some reason S.A. could not act for one of the accused, she would be removed from the record for both.
159Shortly before trial, Mr. Papasotiriou discharged S.A. In accordance with the order of Nordheimer J., S.A. was also prohibited from acting for Mr. Ivezic.
160As I understand Mr. Ivezic’s submissions, he maintains that no reasonably competent counsel would ever have agreed to act for both Mr. Ivezic and Mr. Papasotiriou, much less agreed to bring a motion allowing for joint representation. Mr. Ivezic takes this position, even in the face of the evidence that he and Mr. Papasotiriou were very anxious to be jointly defended by S.A. and had received independent legal advice before initiating the request for joint representation. In essence, Mr. Ivezic argues that S.A. was incompetent and her conduct provoked a miscarriage of justice because she agreed to bring a motion that Mr. Ivezic urged her to bring for him.
161There is a strong argument to be made that S.A. should never have agreed to bring the motion for joint representation in the circumstances. There is, however, no evidence of the kind of prejudice that would generate a miscarriage of justice. It must be borne in mind that S.A. did not act for either Mr. Ivezic or Mr. Papasotiriou during any part of the actual trial.
162Just as he did in respect of the motion to remove Crown counsel, Mr. Ivezic argues that the motion for joint representation caused him to reveal the details of his defence to support the claim that there was no conflict between his position and the position of Mr. Papasotiriou. In the affidavit filed by Mr. Ivezic in support of the ineffective assistance of counsel claim on appeal, Mr Ivezic insists that he had no legal advice about the risks inherent in a joint representation. Those assertions are contradicted by the statements made by Mr. Ivezic in his affidavits filed in support of the joint representation application. Where Mr. Ivezic’s evidence filed on the appeal contradicts what he said in his affidavits on the motions, I do not accept the affidavits filed on appeal. I accept the evidence that Mr. Ivezic had independent legal advice before instructing S.A. to proceed with the joint representation application.
163There can be no doubt that the independent legal advice provided to Mr. Ivezic would have made him aware of the need to lay out his “joint defence” with Mr. Papasotiriou. In any event, there was little, if anything, revealed on the joint representation motion about the defence that was not already known, or could not be reasonably anticipated, given the tenor of the pretrial motions. Mr. Ivezic’s conspiracy theory had been advanced by him throughout the proceedings. Similarly, his alibi defence was well known. Once again, the trial judge avoided any potential prejudice to Mr. Ivezic by foreclosing cross-examination of Mr. Ivezic at trial on his affidavits filed in the pretrial motions.
164The record demonstrates that Mr. Ivezic was very much in control of his own defence throughout the proceedings. He made decisions, presumably on what he saw to be his best interests. Mr. Ivezic had competent counsel at the outset of trial. He chose to discharge counsel and defend himself. He later chose to retain a different, but also competent, counsel for the remainder of the trial. None of these decisions had anything to do with how Mr. Ivezic was represented on the pretrial motions by counsel.
165The ineffective assistance of counsel claim fails.
Conclusion
166For the foregoing reasons, I would therefore dismiss both Mr. Papasotiriou’s and Mr. Ivezic’s appeals.
Released: “May 19, 2023 JMF”
“Doherty J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. L. Favreau J.A.”
Footnotes
- Counsel for Mr. Papasotiriou also raised a ground of appeal relating to a PowerPoint presentation made by the Crown. Counsel abandoned that ground of appeal.
- Ms. M. Segal and Mr. Jack Gemmell represented Mr. Ivezic for parts of the trial. No one suggests either provided representation that was anything less than first rate.
- The court was also provided with the reasons given by the preliminary inquiry judge, dated September 11, 2014, discharging Mr. Papasotiriou at the end of the preliminary inquiry.
