Court File and Parties

COURT FILE NO.: CR-14-10000717 DATE: 20170410

ONTARIO SUPERIOR COURT OF JUSTICE

Toronto Region

B E T W E E N:

HER MAJESTY THE QUEEN Applicant

- and -

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC Respondents

BEFORE: Nordheimer J.

COUNSEL: F. Addario, H. Goody, & P. Santora for the applicant D. Papasotiriou-Lanteigne in person L. Ben-Eliezer, for the respondent, Mladen (Michael) Ivezic C. Verner, appearing as amicus curiae

HEARD: April 5, 2017

[1] The Crown brings this application for an order removing Susan von Achten as solicitor of record for Mladen (Michael) Ivezic. Mr. Ivezic and Mr. Papasotiriou-Lanteigne are jointly charged with first degree murder.

Background

[2] Demitry Papasotiriou and Allan Lanteigne were married on November 27, 2004. On March 2, 2011, Mr. Lanteigne was found murdered in the front hallway of the marital home located at 934 Ossington Avenue in Toronto. At the time of Mr. Lanteigne’s death, Mr. Papasotiriou-Lanteigne was living in Greece.

[3] On October 31, 2012, Mr. Papasotiriou-Lanteigne returned to Canada to attend court proceedings relating to Mr. Lanteigne’s life insurance. He stayed with his mother in Scarborough. On November 2, 2012, he was arrested and charged with first degree murder.

[4] On January 8, 2013, Mr. Ivezic was arrested in Greece on a charge of first degree murder. It is alleged that Mr. Papasotiriou-Lanteigne and Mr. Ivezic were having an affair and that they, together, planned the murder of Mr. Lanteigne. Mr. Ivezic was subsequently extradited to Canada to face the first degree murder charge.

[5] The preliminary inquiry in this matter began on March 31, 2014. Some twenty-two days of evidence were heard. On September 12, 2014, the preliminary inquiry judge committed Mr. Ivezic to trial, but discharged Mr. Papasotiriou-Lanteigne.

[6] On October 28, 2014, the Deputy Attorney General signed a direct indictment charging Mr. Papasotiriou-Lanteigne with first degree murder. Mr. Papasotiriou-Lanteigne was re-arrested the following day.

[7] On November 14, 2014, Mr. Papasotiriou-Lanteigne was ordered released on bail. At that time, Mr. Papasotiriou-Lanteigne had James Lockyer as his counsel.

[8] Since the arrival of these charges in this court, Mr. Lockyer made some appearances on behalf of Mr. Papasotiriou-Lanteigne, but he made it clear that he was not retained for the purposes of the trial. Mr. Papasotiriou-Lanteigne made many appearances on his own behalf. However, Mr. Papasotiriou-Lanteigne always made it clear that he intended to retain Mr. Lockyer for the trial.

[9] Mr. Ivezic had counsel for the preliminary hearing, namely, Susan von Achten. However, after the preliminary hearing, Mr. Ivezic discharged Ms. von Achten and advised that he intended to represent himself. Mr. Ivezic did so for a number of months, including during the course of numerous applications regarding the disclosure in this case. However, during the course of appearances last summer, Mr. Ivezic advised that he intended to retain counsel for the trial. By July 2016, Ms. von Achten appeared to say that she was in the process of being retained by Mr. Ivezic.

[10] As a result of the efforts by both accused to retain counsel, the original trial date of September 12, 2016 was vacated. A new trial date was set for September 11, 2017 to accommodate counsel’s schedule, particularly Ms. von Achten’s schedule.

[11] In November 2016, Crown counsel was made aware that Ms. von Achten had entered into a solicitor and client relationship with Mr. Papasotiriou-Lanteigne in April 2016 regarding a civil claim that he was advancing against his aunt and uncle over the proceeds of the sale of the matrimonial home at 934 Ossington Avenue. Mr. Papasotiriou-Lanteigne had co-owned the home with his aunt and uncle.

[12] Crown counsel also became aware that Ms. von Achten had filed a statement of claim on April 13, 2016, in this court, on behalf of Mr. Papasotiriou-Lanteigne, regarding this claim, and that, subsequent to commencing that action, Ms. von Achten had received a Notice of Intent to Defend and a Demand for Particulars in the proceeding.

[13] In addition to these events, Crown counsel also learned that Ms. von Achten had attended at a police division, with Mr. Papasotiriou-Lanteigne, in August 2016, for the purpose of Mr. Papasotiriou-Lanteigne making a complaint to the police about sexual abuse, that he said he had been subjected to by his uncle, many years earlier.

[14] Very shortly after receiving this information, Crown counsel advised Ms. von Achten of their concern that she may have placed herself in a conflict of interest.

[15] Ms. von Achten has filed an affidavit in response to his application in which she describes her role with Mr. Papasotiriou-Lanteigne’s civil claim as merely editing his draft statement of claim and being available to receive documents. Ms. von Achten acknowledges that she also edited Mr. Papasotiriou-Lanteigne’s response to the Demand for Particulars. Ms. von Achten also acknowledges that she made one court appearance, on behalf of Mr. Papasotiriou-Lanteigne, in the civil proceeding to respond to an issue about costs associated with the Demand for Particulars. Ms. von Achten says that she had the express consent of Mr. Ivezic to assist Mr. Papasotiriou-Lanteigne in this regard.

[16] Ms. von Achten also confirms her attendance at the police division with Mr. Papasotiriou-Lanteigne. She says that she did so to assist Mr. Papasotiriou-Lanteigne in a difficult event. Again, she says that she had Mr. Ivezic’s express consent to do so.

[17] In her affidavit, Ms. von Achten points to the fact that because Mr. Papasotiriou-Lanteigne’s bail conditions do not allow him to have contact with Mr. Ivezic, except in the presence of counsel, she has been present with Mr. Ivezic and Mr. Papasotiriou-Lanteigne, on a couple of occasions, when they have discussed the murder prosecution.

[18] Mr. Ivezic has also filed an affidavit in response to this application. He confirms that he gave his consent to Ms. von Achten assisting Mr. Papasotiriou-Lanteigne, both with respect to the civil claim, and with respect to the report to the police about the alleged sexual abuse. Mr. Ivezic says that he has complete faith in Ms. von Achten’s ability to properly represent him, and that there is no other counsel he would want to represent him. Mr. Ivezic also points to the large amount of time and effort that he and Ms. von Achten have already invested in preparing his defence to the murder charge.

[19] Mr. Papasotiriou-Lanteigne has not filed an affidavit on this application. He did sign a waiver respecting any information, that Ms. von Achten included in her affidavit, that might be covered by solicitor-client privilege. Mr. Papasotiriou-Lanteigne also filed, on March 13, 2017, a Notice of Intention to Act in Person with respect to the civil proceeding.

[20] However, at the hearing of this application, Mr. Papasotiriou-Lanteigne appeared and made submissions that he had no concerns regarding Ms. von Achten acting for Mr. Ivezic, that he did not impart any information to her regarding his civil action that is not a matter of public record, and that he would not raise any issue, with respect to these matters, should he ultimately be convicted. [1]

Conflict of interest

[21] While it is the right of any party to retain counsel of his or her own choosing, that right is not absolute. It is subject to the authority of the court to remove counsel of record for good cause. Good cause exists if the counsel is in a conflict regarding the interests of his or her client and the interests of some other person. The authority to remove counsel of record is to be exercised cautiously and only for compelling reasons. Dubin J.A. put the issue this way in Re Regina and Speid (1983), 43 O.R. (2d) 596 (C.A.) at p. 598:

In assessing the merits of a disqualification order, the court must balance the individual’s right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons.

[22] What constitutes compelling reasons? In answering that question, certain core principles are to be applied. Those principles include:

(i) a lawyer may not act for the opponent of his/her client, or of a former client, in any case in which his/her knowledge of the affairs of such client or former client will give him/her an undue advantage: Sinclair v. Ridout and Moran, [1955] O.R. 167 (H.C.J.).

(ii) while a client has a right to counsel, s/he has no right to counsel who, by accepting the brief, cannot act professionally: Re Regina and Speid, supra.

(iii) a waiver from the former client is not a complete answer to the conflict issue: R. v. Robillard, [1986] O.J. No. 261 (C.A.).

(iv) when the conflict issue is raised at the trial stage, the court must be concerned with actual conflicts of interests, and potential conflicts that may develop as the trial unfolds. Trial judges must, to some degree, speculate as to the issues that may arise, and the course the trial will take. When there is any realistic risk of a conflict of interests, the court must direct that counsel not act for one, or perhaps either, accused: R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.).

(v) once it is shown that there existed a previous relationship, which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted, unless the solicitor satisfies the court that no information was imparted that could be relevant. This will be a difficult burden to discharge: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.

(vi) a lawyer who has relevant confidential information cannot act against his/her client or former client. In such a case, the disqualification is automatic: MacDonald Estate v. Martin, supra.

(vii) the duty of loyalty to current clients includes a much broader principle than just the uses and/or abuses of confidential information. Other considerations include the duty to avoid conflicting interests; the duty of commitment to the client’s cause; and the duty of candour with the client on matters relevant to the retainer: R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631.

[23] Do compelling reasons exist in this case? The potential for conflict is clear on the facts. Ms. von Achten represented two persons, who are jointly charged with first degree murder. She acts for one in the murder prosecution, and acted for the other in a civil case which, as I will explain, engages the murder prosecution. On the face of those facts, there is a realistic prospect of conflict.

[24] Further, in accordance with the principles established in MacDonald Estate v. Martin, given the professional relationship that Ms. von Achten has with both clients, it must be inferred that confidential information has been imparted to her by both clients. In response to that concern, Ms. von Achten says, in her affidavit, that she did not obtain any confidential information from Mr. Papasotiriou-Lanteigne “that may in any way pertain to my representation of Mr. Ivezic”.

[25] In my view, that statement does not satisfy the “difficult burden” that rests on a lawyer to rebut the presumption that confidential information has been imparted. For one, it is not a blanket or unqualified statement denying the receipt of any confidential information. For another, it does not satisfy the requirement that assurances must withstand public scrutiny. As Sopinka J. said in MacDonald Estate v. Martin, at para. 46:

Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication.

Consequently, Ms. von Achten’s statement is insufficient to address this concern.

[26] In addition, and as I alluded to above, it must be realized that it is inevitable that Mr. Papasotiriou-Lanteigne’s civil proceeding will encompass the facts involved in the murder trial. In the civil action, Mr. Papasotiriou-Lanteigne alleges that the interest that his aunt and uncle had in the matrimonial home is being held in trust for him. He claims that his aunt and uncle owe him a fiduciary duty, of which they are in breach. Equitable principles are clearly engaged by that claim, and will inevitably lead to a consideration of whether Mr. Papasotiriou-Lanteigne is entitled to enforce a constructive trust, or a fiduciary duty, in these circumstances, should he be convicted of the murder of his spouse. The claim may well invoke the principle of public policy, summarized by Lord Atkin in Beresford v. Royal Insurance Company Limited, [1938] A.C. 586 at p. 599:

[T]he absolute rule is that the Courts will not recognize a benefit accruing to a criminal from his crime.

I would also note, on this point, that Mr. Lanteigne’s estate has a potential claim against any interest that Mr. Papasotiriou-Lanteigne has in the proceeds of sale of the matrimonial home, and that claim would also engage this same principle.

[27] I must assume that Ms. von Achten, as part of assisting Mr. Papasotiriou-Lanteigne on this civil claim, would have advised him of the probability that the events of Mr. Lanteigne’s death would be drawn into the civil proceeding, as at least one likely defence to Mr. Papasotiriou-Lanteigne’s claim. Any competent counsel would have been quick to point out that reality to Mr. Papasotiriou-Lanteigne, as something that he ought to consider before bringing his claim. The contents of Ms. von Achten’s affidavit does not satisfy me that these types of discussions did not occur.

[28] At the same time, Mr. Papasotiriou-Lanteigne’s submission, that only public information was given to Ms. von Achten, ignores the reality that the basis for his civil claim was not a matter of public record, until after the statement of claim was filed. By that time, Ms. von Achten had already agreed to represent Mr. Papasotiriou-Lanteigne and had engaged in the revision of the statement of claim. I would add, to that concern, the facts that Mr. Papasotiriou-Lanteigne did not make his submissions, on this application, under oath, nor did he have the benefit of independent legal advice respecting the matter, before he made his submissions. Both of those factors are troubling in terms of placing much reliance on Mr. Papasotiriou-Lanteigne’s in-court statements. The fact that Mr. Papasotiriou-Lanteigne is a lawyer does not change that analysis.

[29] In addition to those concerns, there is the reality that, while the positions of Mr. Papasotiriou-Lanteigne and Mr. Ivezic may appear to be aligned at this stage, there is no guarantee that their positions will remain so as the trial unfolds. As Rehnquist C.J. of the United States Supreme Court aptly said, in Wheat v. United States, 486 U.S. 153 (1988) at p. 163:

It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government’s witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants.

[30] If the trial takes a different path than anticipated, Mr. Papasotiriou-Lanteigne may choose to give evidence. There is the very real potential, in that regard, that Mr. Papasotiriou-Lanteigne’s defence would become one of not just no involvement in any plan or agreement to cause the death of his spouse, but also one of no knowledge or participation in any steps that Mr. Ivezic might have chosen to undertake, on his own, regarding the murder.

[31] If that comes to pass, Ms. von Achten would be placed in the invidious position of cross-examining her own client. Mr. Papasotiriou-Lanteigne might then have concerns that matters, that he had confided in Ms. von Achten, would be used against him in some fashion. While the sharing of such confidences would be inferred, that inference is supported by the close working relationship that Ms. von Achten appears to have had with Mr. Papasotiriou-Lanteigne, both through her representation of him in the civil proceeding, and her assistance during the visit to the police.

[32] In addition, and for essentially the same reasons, Mr. Ivezic might have concerns that Ms. von Achten’s cross-examination of Mr. Papasotiriou-Lanteigne would not be as effective (“soft pedal”), as it might otherwise be. As Doherty J.A. observed in Widdifield, at para. 23:

The accused is, however, entitled to more than competence. A lawyer can render effective assistance only when that lawyer gives the accused’s cause the undivided loyalty which is a prerequisite to proper legal representation. Within the limits imposed by legal and ethical constraints, the lawyer must champion the accused’s cause without regard to counsel’s personal interests or the interests of anyone else [citations omitted].

While Mr. Ivezic may not express any concern now regarding this eventuality, he has also not received independent legal advice on the issue. The other reality, of course, is that Mr. Ivezic’s position now, and his position after some weeks at trial, could be very different.

[33] Even if Mr. Papasotiriou-Lanteigne and Mr. Ivezic do not have any such worries, the public would have legitimate concerns regarding the appearance of a lawyer cross-examining her own client. As the Court of Appeal noted in Robillard:

Public confidence in the criminal justice process would surely be undermined by any appearance of impropriety in the conduct of the trial or any lack of fairness in the cross-examination of a witness.

[34] In response to this concern, and for the first time, I was advised that arrangements had been, or were being, put in place to have another counsel available to cross-examine Mr. Papasotiriou-Lanteigne should that be required. There was nothing in the material filed on the application about this and no particulars were given.

[35] I confess to having difficulty seeing how those arrangements would work from a practical point of view. Unless the other counsel sits through the entire trial, it would seem difficult for him/her to be adequately informed to conduct a proper cross-examination of Mr. Papasotiriou-Lanteigne. It would also be an arrangement that would pose problems in terms of explaining to the jury why this other lawyer, rather than Ms. von Achten, was conducting the cross-examination. In addition, no explanation was given to me, assuming this occurred, about how the submissions to the jury would be affected by these arrangements. For instance, how would any submissions regarding the credibility of Mr. Papasotiriou-Lanteigne be made to the jury? Ms. von Achten could not make them and, if other counsel made them, how would Ms. von Achten disassociate herself from those submissions, without compromising her obligation to zealously defend Mr. Ivezic?

[36] These are not the only problems that can arise with respect to the “partial disqualification” option. There are many other ways in which the concern about a lawyer taking a position adverse to a former client can materialize. As observed in M. Proulx and D. Layton, Ethics and Canadian Criminal Law, (Toronto: Irwin Law, 2001), at p. 314:

There are a myriad of points during the conduct of the defence when counsel can arguably be disloyal in exactly this manner, for example, by criticizing the former client during the defence opening, eliciting testimony from Crown witnesses that helps to attack the former client’s credibility, calling witnesses that helps to attack the former client’s credibility, calling witnesses who contradict the former client, or disparaging the ex-client in the closing to the trier of fact. Indeed, leaving specific examples aside, the general function of helping an accused who takes a position materially adverse to the former client can be seen as highly problematic in light of counsel’s persisting duty of loyalty to ex-clients.

[37] All of this simply points out the problem that this situation gives rise to in terms of the public perception and the proper administration of justice. As the Court of Appeal also said in Robillard:

The Court is always required to consider the public interest and the need for public confidence in the administration of criminal justice.

[38] Finally, Ms. von Achten’s reference to discussions that have occurred between both accused, in her presence because of Mr. Papasotiriou-Lanteigne’s bail terms, as somehow alleviating the concerns about confidential information being received, has no merit. There is a significant difference between co-accused discussing matters of mutual interest, and the type of private discussion that those same accused would have with their respective counsel.

Conclusion

[39] In the end result, it appears to me that Ms. von Achten has placed herself in an impossible situation by purporting to act for both accused, albeit in different proceedings. I do not see any way in which those dual representations would not give rise to a reasonable apprehension of a potential for conflict arising between her respective clients. I note, on that latter point, that Ms. von Achten has a continuing duty of loyalty to her former client, Mr. Papasotiriou-Lanteigne. I also do not see any way of addressing that potential conflict, short of disqualification, that would not undermine the need for public confidence in the administration of justice.

[40] Consequently, I have concluded that the application to remove Ms. von Achten as counsel for Mr. Ivezic must be granted.

NORDHEIMER J.

Released: April 10, 2017

Footnote:

[1] The day after the hearing of this application, Mr. Papasotiriou-Lanteigne sent an email message to me in which he set out some further information with respect to his position on this application. Since that is obviously not the proper way to place information before the court, I have not considered the contents of Mr. Papasotiriou-Lanteigne’s email in reaching my decision.