COURT FILE NO.: M232/16 DATE: 20160729
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN K. Wilson, for the respondent Respondent
- and -
DEMITRY PAPASOTIRIOU D. Papasotiriou in person Applicant
HEARD: July 27, 2016
Nordheimer J.:
[1] Mr. Papasotiriou brings this application to re-open the original application that he brought to quash the indictment that was preferred against him by the Deputy Attorney General on a charge of first degree murder. [^1] It is necessary to set out some of the background to understand how this application arises.
Background
[2] The applicant 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. At the time of the murder, the applicant was in Greece.
[3] On October 31, 2012, the applicant 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, the applicant’s co-accused, Michael Ivezic, was arrested in Greece on a charge of first degree murder. It is alleged that the applicant 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 the applicant. The preliminary inquiry judge gave extensive reasons for his decisions.
[6] The respondent immediately launched a certiorari application challenging the preliminary inquiry judge’s decision to discharge the applicant. The usual appearances were made in this court with respect to that application.
[7] On October 28, 2014, the Deputy Attorney General preferred an indictment charging the applicant with first degree murder. The next day, the applicant was arrested on that indictment.
[8] On November 17, 2015, the applicant brought an application to quash the direct indictment on the basis that there was a reasonable apprehension of, if not actual, bias on behalf of the Deputy-Attorney General in relation to the applicant. It is necessary to go further back in time to explain how the allegation of bias arises.
[9] In his affidavit filed on the original application, the applicant sets out that he attended Osgoode Hall Law School from 2000 to 2003. In January and February, 2001, a law student wrote three articles for the law school newspaper, Obiter Dicta, regarding Shariah Law. In the March 12, 2001 issue of that newspaper, the applicant wrote an article in response to those articles. The applicant’s article was written in very strong terms – inappropriately strong terms as the applicant now admits. The article took aim at the law student who wrote the original articles and it directed various comments towards the Muslim faith in general.
[10] The applicant’s article sparked an almost immediate backlash. The article was said to be racist and inflammatory. The applicant was the subject of threats and he was also the subject of a complaint to the law school by the law student who had written the original articles. The Dean of the law school, along with the Associate Dean, became involved in the issue as did the President of York University. The Dean of the law school wrote a letter to Obiter Dicta expressing his unhappiness with the fact that the newspaper had published the applicant’s article. That letter, in turn, sparked further controversy. Various individuals, including some Professors at York University, suggested that the Dean of the law school was attempting to stifle free speech.
[11] The matter found its way into the national press. A number of articles about the issue appeared in the National Post. An editorial also appeared in the Ottawa Citizen. Various letters were written to York University about the matter, including one from the General Counsel of the Canadian Civil Liberties Association.
[12] Eventually, the complaint made by the law student was resolved. Central to that resolution was a letter of apology to the student from the applicant. The letter of apology was also published on the Osgoode Hall Law School website.
[13] At the time of these events, Patrick Monahan was a Professor at Osgoode Hall Law School. On July 1, 2002, he became the Associate Dean of the law school. A year later, he became Dean of the law school. On November 26, 2012, Mr. Monahan became Deputy Attorney General of Ontario. It was in his capacity as Deputy Attorney General that Mr. Monahan preferred the indictment, on October 28, 2014, charging the applicant with first degree murder.
[14] In his second year of law school, the applicant says that he took a trusts course that Mr. Monahan often taught as a substitute for Peter Hogg, who was then the Dean of the law school and who was supposed to be teaching the course. The applicant contends that during these classes Mr. Monahan was always unpleasant to him. Instead of using the applicant’s name, Mr. Monahan would refer to him as “Mr. Papa” despite requests from the applicant that he not do so. The applicant says that Mr. Monahan would often ignore him when he sought to ask questions and, if he did permit a question, would answer it in a deprecating manner. The applicant also says that Mr. Monahan treated him with disdain in front of the other students.
[15] On June 13, 2003, the applicant attended for his convocation. He was late for the ceremony and was dressed in dark pants and a colourful Hawaiian shirt. The applicant bumped into Mr. Monahan. The applicant says that Mr. Monahan told him that he could not participate in the convocation because he was late and that Mr. Monahan also commented disparagingly on the applicant’s attire. Further, the applicant says that Mr. Monahan said that, if it were up to him, after the article that the applicant had written, the applicant would not be graduating at all. Notwithstanding all of this, the applicant did, in fact, participate in the convocation.
[16] A few months later, the applicant corresponded with Mr. Monahan, who was by then Dean, about a problem he had with the Director of Student Financial Services over a sum of money that the applicant owed to the law school. Mr. Monahan said he would look into the matter. A few days later, the applicant attempted to make an appointment to see Mr. Monahan about the issue. The applicant was told that Mr. Monahan was not available to meet him. Undeterred, the applicant went to Osgoode Hall Law School to make an appointment. He ran into Mr. Monahan. The applicant asked to see him. According to the applicant, Mr. Monahan said that he would not see the applicant without an appointment and, in so saying, Mr. Monahan was brusque and rude. The applicant made further attempts to make an appointment without success. Sometime later, the applicant received an email from Mr. Monahan telling him to pay back the monies, which the applicant did.
[17] In his responding affidavit on the original application, Mr. Monahan denies all of these events. In particular, he says that he was away from the law school from July 1, 2000 to June 30, 2001 on a sabbatical leave. More specifically, Mr. Monahan says, in his affidavit:
From July 1, 2000 until June 30, 2001, I was on sabbatical leave, was not on campus and had no involvement in activities occurring at the law school. I returned to campus in September 2001 as an active faculty member during the 2001-02 academic year.
[18] Mr. Monahan says that, at the time that he preferred the indictment against the applicant in this matter, he did not recognize the applicant’s name. He says that he had no knowledge that the applicant had been a student at Osgoode Hall Law School nor did he recollect any of the events to which the applicant made reference in his affidavit.
[19] More specifically, Mr. Monahan says that he never read the article that the applicant wrote in the Obiter Dicta nor did he have any involvement in, or knowledge of, the disciplinary proceedings involving the applicant. Mr. Monahan says that he did not teach a trusts class at any time. Mr. Monahan also says that it was not possible for him to have encountered the applicant at convocation in June 2003 as he was part of the “platform party” and that, as such, he was in a separate room for half an hour prior to the commencement of the ceremony at which time he, and the others, were led into the ceremony and up onto the platform. Mr. Monahan also does not remember any encounters with the applicant regarding the loan issue.
[20] Mr. Monahan does allow that he may have read the National Post story about the applicant’s article during his sabbatical but he says that he did not recall either the article or the applicant’s name until after the applicant launched his application to quash the direct indictment.
[21] The original application to quash was scheduled to be heard on May 20, 2016. At that time, the applicant was represented by senior experienced counsel. Rather than being argued on that date, however, counsel for the applicant advised that the application was being abandoned. No reason or explanation was given for the abandonment of the application. The applicant was present in court at the time that the application was abandoned.
[22] Within a month, the applicant, who was then acting on his own with respect to this matter, advised me that he wished to re-open his original application. At that time, and with the agreement of the Crown, the applicant provided me with a collection of information that, he asserted, showed that material portions of Mr. Monahan’s affidavit were untrue. This information was subsequently placed into evidence by way of an affidavit from the applicant when this application to re-open was heard.
The issue
[23] The question to be determined is whether the applicant ought to be able to re-open his original application to quash the direct indictment in these circumstances.
[24] There does not appear to be any dispute regarding the principles to be applied in deciding this issue. As a starting point, there is agreement that the decision is a discretionary one. There is no hard and fast rule to be applied. The application to re-open is akin to, and therefore invokes the same type of issues that arise in, an application for an extension of time. Such applications are generally guided by three factors, that are set out in a number of cases, including R. v. Menear, [2002] O.J. No. 244 (C.A.) where the court said, at para. 20:
There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:
(i) whether the applicant has shown a bona fide intention to appeal within the appeal period; (ii) whether the applicant has accounted for or explained the delay; and (iii) whether there is merit to the proposed appeal.
[25] The respondent says that the applicant fails on all three of these factors. I do not agree. In terms of the first factor, the applicant has always demonstrated an intention to challenge the direct indictment. Indeed, considerable effort was expended on that effort up until May 20, 2016 which the original application was abandoned.
[26] The second factor is more problematic. It was, and remains, unclear to me why the original application was abandoned. The applicant says that the abandonment was a mistake on his part, caused at least in part because of advice that he received from his counsel. With the benefit of 20/20 hindsight, the applicant says that he ought, instead, to have sought an adjournment of the application, rather than abandoning it. I will say that that explanation would be a more persuasive one had the applicant then been acting for himself, but he was not. As I earlier mentioned, the applicant had senior and experienced counsel acting for him at that time. Counsel would have known the difference between seeking an adjournment and abandoning an application.
[27] That reality further complicates this matter because, while there is a sense that there was some miscommunication or misunderstanding as between the applicant and his counsel, I cannot determine the extent of that problem because it would be inappropriate for me to inquire into the communications between the applicant and his then counsel absent a clear and informed waiver of privilege by the applicant. I should add, in that regard, that the applicant does not suggest any failure on the part of his counsel or other conduct that might amount to any assertion of ineffective assistance of counsel.
[28] The applicant also says that it took him some considerable period of time to unearth the information that is now contained in his affidavit that challenges Mr. Monahan’s contention that he was absent from the campus of Osgoode Hall Law School at the material times. The applicant says that considerable effort was required by him (and others) in searching the Internet and other sources for the information that he now has. I am prepared to accept the applicant’s assertions in that regard but, again, it does not explain why the original application was abandoned.
[29] There is always a concern about permitting a party to re-open a matter that has been abandoned: see R. v. O’Donnell, [2010] O.J. No. 2144 (C.A.). Doing so runs counter to the general desire for finality in court proceedings. Our system of justice cannot operate on a basis where parties can simply change their minds whenever it suits them to do so. That said, the goal of finality cannot justify refusing to revisit a matter, if the interests of justice warrant its review. By way of example only, I note that the failure to ask for an adjournment did not preclude the defence from subsequently being granted permission to re-open its case in R. v. Hayward, [1993] O.J. No. 2939 (C.A.).
[30] This then leads me to the third factor. The respondent contends that there is no merit to this matter but that is a position that I rejected on an earlier occasion when the respondent attempted to have me summarily dismiss the original application on the same basis.
[31] The decision to prefer an indictment is a very serious matter, all the more so when it is taken after a preliminary hearing has been conducted and a judge has determined that an accused person should be discharged. The preferring of an indictment in those circumstances is tantamount to a unilateral appeal and reversal of that decision. In any event, the decision to prefer an indictment is one that must be made in a fair manner. This point was made in R. v. Ertel (1987), 35 C.C.C. (3d) 398 (C.A.) where Lacourciére J.A. said, at p. 414:
However, the preferral of a direct indictment is surely subject to the requirement of fairness, and presumably can be challenged if the accused can satisfy the court that the indictment constitutes an abuse of process.
[32] In this case, the applicant has raised a serious issue about fairness in that he has alleged that there was a reasonable apprehension of, if not actual, bias on behalf of Mr. Monahan given their prior dealings at Osgoode Hall Law School. In response to those allegations, Mr. Monahan makes an absolute and complete denial of the events that underlie those allegations. In his affidavit, as I have mentioned, he says that he did not recognize the applicant’s name when he preferred the indictment nor did he have any recollection of the matters referred to by the applicant revolving around the Obiter Dicta article. In support of those contentions, Mr. Monahan relies to a significant degree (if not entirely) on the fact that he was on sabbatical at the time and “was not on campus and had no involvement in activities occurring at the law school”. The applicant, however, has now produced information that would suggest that Mr. Monahan was, indeed, on campus from time to time during these events and that he was, in fact, involved in activities occurring at Osgoode Hall Law School during those times.
[33] These apparent contradictions call for an explanation. I accept that there may well be a satisfactory explanation for them but that does not obviate the need for the explanation to be provided, especially given the serious context in which the issues arise. It would be hard to think of a more serious situation than where a direct indictment charging first degree murder is involved.
[34] In the end result, the authorities make it clear that the overriding issue is whether the interests of justice warrant permitting the applicant to re-open his original application. For the reasons that I have given, I am satisfied that they do. If the applicant is to face trial on a charge of first degree murder, there should be no doubt as to the legitimacy of the process by which that trial came about. I would also note that there does not appear to be any specific prejudice to the respondent in permitting the application to be re-opened.
[35] I therefore grant the applicant’s request to re-open his application to quash the direct indictment. There is currently a trial date in September, albeit one that is the subject of potential applications for adjournment by both accused. The possibility of an adjournment does not, however, change the fact that the issue raised here must be dealt with as expeditiously as possible. To that end, the application is to be spoken to on August 9, when this case is otherwise already scheduled to return before me. I will, at that time, set a hearing date for the original application to quash. I therefore expect all parties to have dates available for that purpose, including dates when any witnesses that may require cross-examination will be available.
NORDHEIMER J. Released: July 29, 2016
[^1]: I should mention that this matter came before me in my capacity as the case management judge for the underlying prosecution, appointed pursuant to s. 551.1 of the Criminal Code.