Court of Appeal for Ontario

Date: August 30, 2018 Docket: M49479 (C65707) Motions Judge: Trotter J.A.

Between

Her Majesty the Queen Respondent

and

Demitry Papasotiriou Applicant/Appellant

Counsel

James Lockyer, for the applicant/appellant

Frank Au, for the respondent

Heard: August 23, 2017

Endorsement

A. Introduction

1On June 3, 2018, after a lengthy jury trial, Demitry Papasotiriou and Michael Ivezic were found guilty of the first degree murder of Allan Lanteigne. On June 7, 2018, they were sentenced to life imprisonment with no parole eligibility for 25 years. Mr. Papasotiriou seeks bail pending his appeal.

2Mr. Papasotiriou and Mr. Lanteigne were married. Mr. Papasotiriou and Mr. Ivezic were having an affair. On March 2, 2011, when Mr. Papasotiriou was in Greece, Mr. Lanteigne was beaten to death in the foyer of their Toronto matrimonial home. It is the Crown's theory that, while Mr. Papasotiriou was away, he encouraged Mr. Ivezic to kill Mr. Lanteigne, and assisted him by ensuring that Mr. Lanteigne arrived home at a certain time, where Mr. Ivezic lay in wait.

B. Factual Background

3For the purposes of these reasons, it is not necessary to summarize the voluminous evidence in great detail.

4The case against Mr. Papasotiriou was completely circumstantial. There was some suggestion of a financial motive. The couple married in 2004. Mr. Papasotiriou purchased the matrimonial home in 2006. However, in 2010, he left for Switzerland to pursue graduate studies in law. He soon abandoned his studies and moved to Greece, where he neither studied nor worked. Mr. Papasotiriou needed funds and repeatedly requested money from Mr. Lanteigne, who was working in Toronto. This was a great source of rancour between the two men.

5In 2008, Mr. Papasotiriou and Mr. Lanteigne bought a mutual life insurance policy for $2 million. Shortly after the murder, Mr. Papasotiriou attempted to collect the proceeds, as well as survivor benefits from Mr. Lanteigne's employers.

6To prove Mr. Papasotiriou's complicity in the murder, the Crown relied upon email correspondence between Mr. Papasotiriou and Mr. Lanteigne, as well as Mr. Papasotiriou's email exchanges with Mr. Ivezic.

7The case against Mr. Ivezic was different. He had access to the matrimonial home, courtesy of Mr. Papasotiriou, and his DNA was found under Mr. Lanteigne's fingernails.

8As discussed below, Mr. Papasotiriou was discharged at the preliminary inquiry. In a lengthy decision, Nakatsuru J., then a judge of the Ontario Court of Justice, found that there was insufficient evidence to warrant a trial for Mr. Papasotiriou. However, Mr. Ivezic was committed to stand trial.

9Mr. Papasotiriou's success was short lived. The Crown applied for certiorari to quash the order of Nakatsuru J. Before that application was heard, the Attorney General preferred an indictment under s. 577 of the Criminal Code.

10The trial was long and difficult. Mr. Papasotiriou had counsel; Mr. Ivezic did not. At the close of the Crown's case, both applied for directed verdicts of acquittal. The trial judge, Goldstein J., dismissed their applications: R. v. Papasotiriou-Lanteigne, 2018 ONSC 1994. In relation to Mr. Papasotiriou, he placed heavy reliance on an email sent to Mr. Lanteigne on the day he was killed, in which Mr. Papasotiriou insisted that Mr. Lanteigne be home by a certain time, and that he not "dilly dally." Mr. Lanteigne was killed shortly thereafter.

11Following the dismissal of the directed verdict application, evidence was called on behalf of Mr. Papasotiriou that established that he had received an offer to purchase a property that he owned in Greece. His counsel argued before the jury that Mr. Papasotiriou wanted Mr. Lanteigne to be home at a particular time so that he could deliver the good news over the phone, instead of by email.

12The jury deliberated for six days before delivering its verdicts. They asked no questions during their deliberations.

C. Mr. Papasotiriou and His Bail History

13Mr. Papasotiriou is 38 years old. He was born in Greece and spent his first 11 years in that country. He came to Canada after his parents' marriage failed. He attended university and then law school, and was called to the Ontario Bar.

14As noted above, Mr. Papasotiriou left Canada in 2010 and ended up in Greece. There was evidence that he intended to stay in Greece permanently. While the details are vague, his father gifted him a property, said to be worth around CDN $600,000. It was this property on which a purchase offer was received.

15Mr. Ivezic went to Greece in the latter part of 2010 and lived with Mr. Papasotiriou for six months. Mr. Ivezic returned to Canada in January of 2011. Mr. Lanteigne was killed on March 3, 2011. In the following months, Mr. Ivezic assisted Mr. Papasotiriou in attempting to obtain death benefits and insurance proceeds. On May 14, 2011, Mr. Ivezic returned to live with Mr. Papasotiriou in Greece.

16Mr. Papasotiriou finally returned to Canada on November 1, 2012, knowing that he was a suspect in Mr. Lanteigne's murder. He was arrested on November 2, 2012. However, Mr. Papasotiriou's return to Canada needs to be seen in a broader context. His intention in returning was for the purpose of participating in litigation over the proceeds of the insurance policy he held with Mr. Lanteigne.

17In August of 2013, Mr. Papasotiriou applied for bail. His application was heard by MacDonnell J. of the Superior Court of Justice. The Crown relied solely on the primary ground in s. 515(10)(a) of the Criminal Code to argue that Mr. Papasotiriou should not be released. MacDonnell J. found that Mr. Papasotiriou had not discharged his onus under s. 522(2) of the Criminal Code and ordered his detention.

18In November of 2013, Mr. Papasotiriou re-applied for bail before MacDonnell J., offering an improved plan of release. This application was also dismissed.

19As noted above, after a lengthy preliminary inquiry, Nakatsuru J. discharged Mr. Papasotiriou on September 11, 2014. The Crown immediately launched a certiorari application. Mr. Papasotiriou made a number of appearances in the Superior Court in response to this application. The direct indictment was preferred on October 28, 2014, resulting in Mr. Papasotiriou's arrest the next day. During this time (September 11 to October 29), he was not subject to any form of release. He stayed with his mother and his father-in-law. He did not attempt to leave the jurisdiction.

20Mr. Papasotiriou applied for bail again. This time he was released by Forestell J. of the Superior Court of Justice on a $400,000 recognizance with his mother, sister, and stepfather as sureties. The Crown did not seek to review this decision. Mr. Papasotiriou was on bail for the next three and a half years, during which there were no charges, nor any compliance issues. In fact, his conditions were loosened from time to time. Mr. Papasotiriou remained on bail during the jury's lengthy deliberations. Bail was terminated by operation of law upon his conviction for murder: s. 523(1)(a).

D. Grounds of Appeal

21Mr. Papasotiriou advances several grounds of appeal. His main argument is that the jury's verdict was unreasonable. As this was the only ground that was developed at the oral hearing, I will not address the others.

E. The Release Plan

22Mr. Papasotiriou proposes a plan of supervision that is more stringent than his pre-trial bail. It entails a $500,000 recognizance with the following sureties: (a) Kakouli Poka, his mother, in the amount of $400,000; (b) Wasiem Diab, his stepfather, in the amount of $75,000; and (c) Aida Elfekes, his stepfather's mother, in the amount of $25,000. The Crown did not cross-examine these sureties, nor does it suggest that any of them would be unsuitable.

23In addition to the significant recognizance, a number of conditions are proposed. These include strict house arrest with very narrow exceptions. It is further proposed that, before being released, Mr. Papasotiriou be fitted with a GPS ankle bracelet to be monitored by Recovery Science Corporation. Mr. Papasotiriou, not the government, would be responsible for funding this service.

F. Analysis

(1) Introduction

24The criteria for bail pending appeal of a conviction are set out in s. 679(3) of the Criminal Code. An applicant must establish that: (a) the appeal is not frivolous; (b) he will surrender into custody in accordance with the terms of any bail order; and (c) detention is not necessary "in the public interest."

(2) Not Frivolous (s. 679(3)(a))

25In R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, Moldaver J. said, at para. 20, that the "not frivolous" test "is widely recognized as being a very low bar." The Crown does not suggest that the appeal is frivolous. I agree.

(3) Surrender into Custody (s. 679(3)(b))

26The Crown argues that Mr. Papasotiriou has not discharged his onus on this ground, relying heavily on his ties to Greece.

27As noted above, Mr. Papasotiriou returned to Canada from Greece, knowing he was under suspicion for murder, but not because he was under suspicion. He returned to pursue insurance proceeds. Nevertheless, his return was voluntary, and it is a modest factor in his favour.

28In dismissing Mr. Papasotiriou's bail applications on the primary ground, MacDonnell J. was concerned that there is no mechanism to seek the return of Mr. Papasotiriou should he flee to Greece. Greece is not required to extradite its citizens.[1] This was a legitimate concern at the time. However, Mr. Papasotiriou's lengthy history of bail compliance, combined with the enhanced plan of supervision that is now proposed, render the extradition scenario remote.

29Mr. Papasotiriou's compliance with his pre-trial bail order was flawless. There were no reported problems for three and a half years. This type of track record is an important factor that typically weighs in favour of release: see R. v. Forcillo, 2016 ONCA 606, at para. 19; R. v. Matteo, 2016 QCCA 2046, para. 13; and R. v. Xanthoudakis, 2016 QCCA 1809, at para. 9.

30Furthermore, it is proposed that the previously successful release plan be augmented by electronic monitoring. Electronic monitoring is no guarantee against flight: see United States of America v. Singh, 2014 ONCA 559, at para. 17. However, it can be a useful enhancement to an otherwise credible release plan. It provides an extra layer of assurance against absconding. The technology is ever evolving. GPS monitoring, which was not available in some of the earlier cases commenting on the efficacy of this measure, is now the standard. Moreover, many Ontario judges have relied upon Recovery Science Corporation to assume this important role.[2] In this case, I too am prepared to do so, and consider it to be a significant element of the release plan.

31I accept that, standing alone, Mr. Papasotiriou's connections to Greece may give pause for concern. However, any lingering concerns about flight are answered by his history of bail compliance and the strict release plan that is proposed. Accordingly, I am satisfied that the applicant will surrender into custody in accordance with his bail order.

(4) The Public Interest (s. 679(3)(c))

32There are two components of public interest to consider under s. 679(3)(c) of the Criminal Code – public safety and confidence in the administration of justice.

(a) Public Safety

33The Crown properly concedes that Mr. Papasotiriou has established that he will not commit offences if he is released on bail. Prior to being charged with this murder, the applicant has never been charged with a criminal offence, let alone a violent offence. He has discharged his onus under this part of s. 679(3)(c).

(b) Public Confidence in the Administration of Justice

34The Crown argues that Mr. Papasotiriou must be detained in order to maintain public confidence in the administration of justice.

35The framework for applying this aspect of s. 679(3)(c) was addressed in Oland. Writing for a unanimous Court, Moldaver J. explained that release on this ground is determined by the balancing of enforceability and reviewability considerations.

36As Moldaver J. said at para. 38, enforceability considerations are informed by the similar basis for pre-trial detention in s. 515(10)(c) of the Code – the "tertiary ground." The following enumerated factors are applicable to the enforceability inquiry on appeal: the gravity of the offence (s. 515(10)(c)(ii)); the circumstances surrounding its commission (s. 515(10)(c)(iii)); and the potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)).

37In this case, all three of these factors weigh against release. However, as Moldaver J. said at para. 39: "By the same token, the absence of flight or public safety risks will attenuate against the enforceability interest."

38The reviewability side of the ledger under s. 679(3)(c) corresponds with s. 515(10)(c)(i) – the apparent strength of the prosecution's case. In the appellate sphere, the focus is on the strength of the grounds of appeal.

39In oral argument, counsel for Mr. Papasotiriou advanced a credible argument that the verdict, based entirely on circumstantial evidence, was unreasonable and could not have been reached without impermissible speculation: s. 686(1)(a)(i). He argued that the body of emails relied upon by the Crown is susceptible to various interpretations and that the path to guilt rests heavily on a series of coincidences. The fact that Mr. Papasotiriou was discharged at the preliminary inquiry adds weight to this argument, at least for bail purposes.

40The Crown downplays the importance of this decision by arguing that Nakatsuru J.'s ruling was never reviewed by way of certiorari. However, the possibility of review was foreclosed by the Crown's decision to invoke s. 577 of the Criminal Code.

41The Crown also relies on the fact that, on the directed verdict application, the trial judge came to a different conclusion when applying a comparable test of sufficiency, to a similar body of evidence. In his reasons, at para. 5, Goldstein J. recognized that his task did not involve a review of the correctness of Nakatsuru J.'s reasons. He undertook his own evaluation of the evidence. Still, Goldstein J.'s decision assists the Crown on this issue, though only to a limited degree.

42On this application for bail pending appeal, Mr. Papasotiriou argues that Goldstein J. erred in law and misapprehended a key piece of evidence – the so-called "dilly dally" email. Whether this is so is unimportant. When this ground of appeal is argued before a panel of the court, it will not involve a review of the decisions of Goldstein J. or Nakatsuru J.[3] Under s. 686(1)(a)(i), the court will conduct its own assessment of the reasonableness of the verdict against the entirety of the evidence at trial (including defence evidence), utilizing a more robust scope of review: see R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 40. Nevertheless, at this stage of the proceedings, the divergent conclusions reached by Nakatsuru J. and Goldstein J. demonstrate to me that the reasonableness of the verdict, as it relates to Mr. Papasotiriou, is clearly in issue. If he is successful on appeal, he will be entitled to an absolute acquittal. However, it will take a considerable amount of time before this court actually hears that appeal and decides this issue.

43The "public interest" requires that I balance all of these factors – the circumstances of the applicant, the nature of the offence, the apparent strength of the appeal, and the time it will take to argue the appeal – to determine whether public confidence in the administration of justice would be undermined by Mr. Papasotiriou's release on bail. This is no easy task when the offence is as serious and as disturbing as this one. This balancing is explained in the following passage from Oland, in which Moldaver J. says, at paras. 49-51:

In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other serious offences, as proposed by certain interveners. Instead, the principles that I have discussed should be applied uniformly.

That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak…

On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the "not frivolous" criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences. [Emphasis added. Citations omitted.]

44Both sides rely on different aspects of this passage. On the one hand, it is clear that Mr. Papasotiriou has been convicted of the most serious crime in the Criminal Code. However, this does not foreclose his ability to obtain bail pending appeal. After all, Oland was itself a murder case. See also R. v. Shlah, 2017 ABCA 425. On the other hand, given the proposed plan of release, which involves very strict supervision, there are no longer any "lingering" flight concerns. Moreover, the main ground of appeal "clearly surpasses" the "not frivolous" threshold.

45Public confidence is to be measured by the standard of a reasonable member of the public. As Moldaver J. said in Oland, at para. 47: "This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values." See also R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80.

46A reasonable and well-informed member of the public would appreciate that, although Mr. Papasotiriou has been convicted of a horrendous crime, proper proof of his involvement may well be in doubt. A reasonable member of the public would also realize that Mr. Papasotiriou is not simply being "turned loose" on society, with no precautions or safeguards, while his case works its way through the appeal process. To the contrary, he will be released on very stringent conditions, including house arrest, backed by GPS electronic monitoring, and the pledge of half a million dollars by his sureties. A similar plan, but without electronic monitoring, was completely successful for three and half years pending trial.

47In conclusion, it is my view that a reasonable member of the public would accept that, in all of the circumstances of this case, Mr. Papasotiriou's release on bail pending appeal is consistent with the just and proper functioning of our justice system.

G. Disposition and Release Order

48The application is allowed. Mr. Papasotiriou is to be released on a $500,000 recognizance with three sureties and 19 other conditions agreed to by counsel and approved by me.

"G.T. Trotter J.A."

Footnotes

1Mr. Ivezic was returned to Canada from Greece through extradition channels, but there is no indication that he is a Greek citizen.

2The extent of this reliance is detailed in the report prepared by Mr. Stephen Tan, Director of Operations, Recovery Science Corporation. This document formed part of Mr. Papasotiriou's bail pending appeal application materials.

3This is not to say that the careful reasons of both judges will not be of value in determining what inferences may properly be drawn from the evidence.