Court File and Parties

Court File No.: CR-14-10000717 Date: 2016-09-30

Ontario Superior Court of Justice

Toronto Region

Between:

HER MAJESTY THE QUEEN F. Addario & S. Sector, for the respondent [1] Respondent

- and -

DEMITRY PAPASOTIRIOU-LANTEIGNE D. Papasotiriou-Lanteigne in person [2] Applicant

Heard: April 4 & 25, September 21, 2016

Nordheimer J.:

[1] Within this prosecution for first degree murder, Mr. Papasotiriou-Lanteigne brings this application to quash the indictment that was preferred against him by the Deputy Attorney General. This application has proceeded in various stages. For example, at the beginning of the application, in April, I dealt with two separate issues. In both instances, I gave my bottom line decision and said that my reasons for both decisions would be provided at the conclusion of the application. The conclusion of the application has taken somewhat longer to reach than had been originally anticipated. In any event, I now provide my reasons on the preliminary issues along with my reasons on the main application.

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 located on Ossington Avenue in Toronto. 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] With that background to the charge set out, it is necessary to go further back in time to explain the basis of the applicant’s application to quash the direct indictment. The applicant 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 the newspaper, the applicant wrote an article in response to these 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.

[9] 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. While the Associate Dean of the Law School was principally involved in handling the complaint, the Dean was also involved as was, ultimately, the President of York University. The Dean of the Law School wrote a letter to the newspaper expressing his unhappiness with the fact that the newspaper had published the applicant’s article. This 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.

[10] 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.

[11] 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.

[12] During 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 charging the applicant with first degree murder.

[13] In his second year of law school, the applicant says that he took a trusts course that Mr. Monaghan often taught as a substitute for the then Dean of the Law School, who was supposed to be teaching the course. The applicant contends that during these classes Mr. Monaghan was always unpleasant to him. Instead of using the applicant’s name, Mr. Monaghan would refer to him as “Mr. Papa” despite requests from the applicant that he not do so. The applicant says that Mr. Monaghan 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. Monaghan treated him with disdain in front of other students.

[14] 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. Monaghan. The applicant says that Mr. Monaghan told him that he could not participate in the Convocation because he was late and that he also commented disparagingly on the applicant’s attire. Further, the applicant says that Mr. Monaghan said that, if it were up to him, after the article that the applicant had written, the applicant would not be graduating at all. Despite all of this, the applicant did, in fact, participate in the Convocation.

[15] A few months later, the applicant corresponded with Mr. Monaghan, who was by then Dean of the Law School, 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. Monaghan said he would look into the matter. A few days later, the applicant attempted to make an appointment to see Mr. Monaghan about the issue. The applicant was told that Mr. Monaghan was not available to meet him. Undeterred, the applicant went to Osgoode Hall Law School to make an appointment. He ran into Mr. Monaghan. The applicant asked to see him. According to the applicant, Mr. Monaghan said that he would not see the applicant without an appointment and, in so saying, Mr. Monaghan was brusque and rude. The applicant made further attempts to make an appointment without success. Sometime later, the applicant received an email from Mr. Monaghan telling him to pay back the monies, which the applicant did.

[16] In his responding affidavit, the Deputy Attorney General denies all of these events, save for the later financial issue that he acknowledges having some limited involvement in. He says that he was away from the law school from July 1, 2000 to June 30, 2001 on a sabbatical leave. The Deputy Attorney General 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 makes reference in his affidavit.

[17] More specifically, the Deputy Attorney General 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. The Deputy Attorney General says that he did not teach a trusts class at any time. The Deputy Attorney General 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, along with others, were led into the ceremony and up onto the platform. Mr. Monaghan also does not remember any encounters with the applicant regarding the loan issue although he does acknowledge that he responded to one email from the applicant regarding that issue.

[18] The Deputy Attorney General 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 this application.

A. Summary dismissal

[19] The first issue that arose with respect to this application came from the respondent. In response to the application, the respondent first sought to have the application summarily dismissed on the ground that the material filed on the application did not give rise to a tenable claim that required the respondent to respond. After hearing argument on that preliminary issue, I dismissed the respondent’s application and directed that the respondent file any responding material that it intended to rely upon.

[20] While the respondent’s application did not specify the authority upon which it was brought, the issue was argued on the basis that it was grounded in rule 34.02 of the Criminal Proceedings Rules, SI/2012-7 that reads:

The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[21] As can be seen from the language of the rule, the threshold for summarily dismissing an application is a high one. It requires that there be “no reasonable prospect” that the application could succeed. A practical application of that threshold can be found in R. v. Omar (2007), 2007 ONCA 117, 84 O.R. (3d) 493 (C.A.) where Sharpe J.A. described the type of application to which the rule can be applied. He said, at para. 31:

The trial judge was not required to proceed with the disclosure motion on the basis of an abstract theory of relevance that had no foundation in the evidence or anticipated evidence and the positions of the parties, or based on a legal argument that was doomed inevitably to failure. [emphasis added]

[22] Another expression of the same type of threshold, only in this instance directly related to the situation where prosecutorial discretion is engaged, can be found in R. v. N. (D.) (2004), 2004 NLCA 44, 188 C.C.C. (3d) 89 (Nfld. C.A.) where Wells C.J.N.L. said, at para. 26:

For that reason I would adopt the approach of the Ontario Court of Appeal in Durette, in Perks and in Larosa, and conclude that a court is not to embark on a review of prosecutorial discretion, as a procedure to determine whether or not abuse of process can be established, unless the applicant first provides a threshold showing of impropriety on the part of the Crown or, at the very least, makes a tenable allegation of such impropriety coupled with an offer of proof. [emphasis added]

[23] The allegations made by the applicant were, in my view, sufficient to call upon the respondent for a response. As I shall develop more fully below, the applicant’s allegations, if accepted, were sufficient to give rise to, if not actual bias, at least a reasonable apprehension of bias, on behalf of the Deputy Attorney General regarding his decision to prefer an indictment given the history of the alleged dealings between the applicant and him. Based solely on the applicant’s allegations regarding that history, which is all that was before me at the time that this issue was argued, a reasonable person, fully informed of the facts here, could conclude that the Deputy Attorney General was not an impartial and objective decision-maker.

[24] For that reason, there was no basis for summarily dismissing the application.

B. Disclosure

[25] The next issue that arose involved disclosure. After my first ruling, the respondent delivered an affidavit from the Deputy Attorney General responding to the allegations made by the applicant. After receipt of the affidavit, the applicant requested copies of all interviews conducted with the Attorney General in preparation of the affidavit. The respondent refused to provide copies of the interviews. The applicant then brought a motion for disclosure of the interviews. After hearing submissions on the matter, I ruled that copies of all interviews with the Deputy Attorney General that led to the preparation of his affidavit had to be produced, although I allowed that they could be vetted for any legal advice that had been given in the course of those interviews.

[26] The main ground upon which the respondent refused to provide copies of the interviews was that the interviews were subject to solicitor-client privilege. Latterly, the respondent attempted to shield disclosure of the interviews on the basis of work product privilege. In my view, neither of those privileges shields interviews, of the type that are in issue here, from disclosure.

[27] I begin with a restatement of the principles that determine the application of solicitor-client privilege. They have been stated many times by the Supreme Court of Canada. One of those statements is found in R. v. Shirose, 1999 SCC 676, [1999] 1 S.C.R. 565 where Binnie J. said, at para. 49:

This Court had previously, in Descôteaux v. Mierzwinski, 1982 SCC 22, [1982] 1 S.C.R. 860, at p. 872, adopted Wigmore’s formulation of the substantive conditions precedent to the existence of the right of the lawyer’s client to confidentiality (Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), sec. 2292, at p. 554):

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived. [Emphasis and numerotation deleted.]

[28] The interviews of the Deputy Attorney General were not conducted for the purpose of providing legal advice. They were conducted for the purpose of preparing him to give evidence, by way of an affidavit, in this proceeding. Solicitor-client privilege does not attach to factual information provided by a client to a lawyer in the course of the preparation of the client to give evidence. This is especially true in the context of a criminal proceeding. I accept that, if a client goes to a lawyer for the main purpose of obtaining legal advice, the facts that the client communicates to the lawyer for the purpose of obtaining that advice will ordinarily be privileged. That is a different situation than is the one here, however.

[29] There tends to be a somewhat widely held belief among lawyers that everything that a lawyer does with, and for, a client is covered by solicitor-client privilege. That is simply not correct. The application of solicitor-client privilege is much narrower. For solicitor-client privilege to apply, the surrounding circumstances must meet Wigmore’s requirements, that I have set out above. This point was also made in Shirose where Binnie J. said, at para. 50:

It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege.

No solicitor-client privilege attaches to advice on purely business matters even where it is provided by a lawyer. As Lord Hanworth, M.R., stated in Minter v. Priest, [1929] 1 K.B. 655 (C.A.), at pp. 668-69:

[I]t is not sufficient for the witness to say, “I went to a solicitor’s office.” ... Questions are admissible to reveal and determine for what purpose and under what circumstances the intending client went to the office.

Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.

[30] That said, I acknowledge the possibility that, in the course of an interview undertaken to prepare his/her evidence, a client may ask for, or be given, legal advice. If that advice is reflected in the notes of the interview, then it can be vetted on the grounds of solicitor-client privilege before disclosure is made of the notes. But that is a very much different thing than saying the notes in their entirety are protected by solicitor-client privilege, particularly insofar as factual matters are revealed and recorded.

[31] The same is true regarding any assertion that the interviews are covered by work product privilege. Work product privilege does not shield factual information from disclosure. This point was made in R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411 where L’Heureux-Dubé J. said, at para. 87(QL):

… work product which, provided that it contains no material inconsistencies or additional facts not already disclosed to the defence, the Crown would also not ordinarily be obliged to disclose, …[emphasis added]

See also R. v. Brennan Paving and Construction Ltd., 1998 ONCA 926, [1998] O.J. No. 4855 (C.A.) at para. 21.

[32] I note that the position of Crown counsel, in this respect, may be different from that of civil counsel. The scope for the application of work product privilege (or litigation privilege as it is also often described) to material in the hands of the Crown is arguably narrower. [3] This point was made in Hudson Bay Mining and Smelting Co. v. Cummings, 2006 MBCA 98, [2006] M.J. No. 304 (C.A.) where Steel J.A. said, at para. 62:

As mentioned previously, in the civil context, information or communications may be privileged or immune from disclosure where the dominant purpose of the communication is its use in actual, contemplated or anticipated litigation. In the criminal process, Crown counsel’s role is different from the role of counsel for a party to civil litigation. Documents in a Crown brief are generally not subject to litigation or work product privilege. What is privileged are notes that involve thought processes or considerations of counsel in the preparation of his/her case.

[33] The bottom line is that factual information provided by the Deputy Attorney General in the course of any interviews, undertaken for the purpose of preparing his affidavit, must be disclosed to the accused. To hold otherwise, would be fundamentally inconsistent with the obligations of disclosure that rest on the Crown, that is, the obligation to disclose all relevant information in its possession: R. v. Stinchcombe, 1991 SCC 45, [1991] 3 S.C.R. 326.

C. Motion to quash

(i) Bias

[34] I begin my analysis of the central issue raised by the applicant with the basic proposition that the decision to prefer an indictment under s. 577 of the Criminal Code by the Attorney General or the Deputy Attorney General (I note that under the express terms of the section it must be one or the other), involves an exercise of core prosecutorial discretion. As such, the court’s jurisdiction to review the exercise of that discretion is limited. Prosecutorial discretion is reviewable only for abuse of process: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 at para. 48.

[35] The fact that the court’s jurisdiction is limited is not the same thing, however, as saying that there is no jurisdiction in the court to engage in a review. Notwithstanding that the Attorney General, or the Deputy Attorney General, is exercising a discretion, s/he must follow a process in the exercise of that discretion that is fair and objective. This requirement can be drawn from a number of cases including R. v. Beare; R. v. Higgins, 1988 SCC 126, [1988] 2 S.C.R. 387 where La Forest J. said, at para. 53(QL):

This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; [citations omitted]. The Court did add that if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie, but no allegation of this kind has been made in the present case.

[36] In addition, such a requirement was alluded in the earlier decision of R. v. Ertel (1987), 1987 ONCA 183, 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.

[37] Similarly, in R. v. Brown, [1997] O.J. No. 6164 (S.C.J.), Trafford J. said, at para. 4:

As such the internal process leading to the exercise of discretion by the Attorney General must be fundamentally fair when viewed objectively by a reasonable and fully informed individual.

[38] The fundamental principle of fairness includes the right of a person to have any decision, that affect his or her rights, undertaken by a fair and impartial decision-maker. This point was stressed in Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817 where L’Heureux-Dubé J. said, at para. 28:

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[39] There cannot be any reasonable argument that a decision maker who is biased, or regarding whom there is a reasonable apprehension of bias, is neither in fact, nor in appearance, an impartial decision-maker. There also cannot be any reasonable argument that a decision that emanates from a decision-maker who is biased, or who is reasonably perceived to be biased, is not one that can stand.

[40] I should point out that in this case, unlike most where these issues arise, there is the suggestion that actual bias was involved, not just a reasonable apprehension of bias. However, since the applicant is unrepresented, and the formulation of his complaint is not as precise as one might otherwise expect, I will also deal with the issue of a reasonable apprehension of bias since the latter can arise even where the former is not made out: R. v. Roberts, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 66.

[41] In that regard, the test for a reasonable apprehension of bias is well-known. It was stated in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 SCC 2, [1978] 1 S.C.R. 369 where de Grandpré J. said, at p. 394:

In the words of the Court of Appeal, that test is “what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

[42] It will be apparent from the above statement that the determination of whether there is a reasonable apprehension of bias is an objective one. It is to be determined based on what a reasonable informed person would conclude faced with the particular facts in issue. It is not to be determined based on the subjective view of the person who is affected by the decision.

[43] In this case, there is a stark contrast between what the applicant says occurred at Osgoode Hall Law School over a decade ago and what the Deputy Attorney General says happened. The applicant says that I should prefer his evidence over that of the Deputy Attorney General. The difficulty with that submission is that, to the degree that there is any independent evidence relating to the matters in issue, it tends to favour the evidence of the Deputy Attorney General over that of the applicant.

[44] For example, the applicant contends that the Deputy Attorney General substituted for the then Dean of Osgoode Hall Law School in teaching a trusts course that the applicant took. This is the course during which the applicant says that the Deputy Attorney General made disparaging comments about him. The Deputy Attorney General says that he never taught a trusts course. He says that he was not “competent” to teach trusts and that, in any event, it was not the practice of Professors at Osgoode Hall Law School, and certainly not the practice of the then Dean, to have Professors substitute for one another. Instead, if a Professor was unable to teach a particular class, then a make-up class would be scheduled.

[45] The evidence of the Deputy Attorney General accords with common sense. Even if a Professor was going to ask a colleague to substitute for him/her, one would not expect that substitute Professor to be a person who had no knowledge of, or background in, the subject matter of the class.

[46] More importantly are the events that surround the genesis of the applicant’s concerns regarding the attitude of the Deputy Attorney General. Those events surround the article that the applicant wrote and that was published in the Obiter Dicta in March 2001. The uncontradicted evidence is that the Deputy Attorney General was on a sabbatical leave that academic year and spent most of his time working out of an office at a law firm in downtown Toronto. The Deputy Attorney General says that he did not read the article in question; that he was unaware of the controversy surrounding it; and that the issue was never discussed with him by any person at the law school because it was a confidential student discipline matter.

[47] I cannot find any basis to reject the evidence of the Deputy Attorney General on this point. In reaching that conclusion, I am mindful of the fact that there is an issue raised regarding the affidavit, that was filed by the Deputy Attorney General in response to this application, in which he says, respecting the academic year 2000/2001:

I was on sabbatical leave, was not on campus and had no involvement in activities occurring at the Law School.

[48] It is clear from the evidence compiled by the applicant that the Deputy Attorney General was, in fact, on campus on certain occasions during that time. It is also clear that the Deputy Attorney General participated in some, very limited, activities that were occurring at the law school. In cross-examination, the Deputy Attorney General explained that he meant, in the above sentence, that he was not “regularly” on campus and that he did not engage in the type of “administrative” activities that Professors are otherwise expected to.

[49] The wording used by the Deputy Attorney General in his affidavit gives rise to a concern because it is not, on its face, an accurate statement. However, I am satisfied that it arises from careless wording as opposed to any intent to mislead or obfuscate. The problem undoubtedly arises from the reality that experience, unfortunately, continually demonstrates that people do not exercise the care and attention when signing affidavits that one might reasonably expect. It seems that, generally, people do not approach the swearing of an affidavit with the same degree of seriousness that they do when they are called upon to actually give evidence in person. Perhaps this is because, as was the case here, affidavits are usually prepared by counsel as opposed to being prepared by the deponent. The deponent then does not review the affidavit with the degree of critical review that they should. All of that said, when he was cross-examined, the Deputy Attorney General did not shy away from the issue. He was forthright in explaining what he had meant by that sentence. I would add that his evidence before me, both on this and other issues, was given in a straightforward and fair manner.

[50] None of this changes the undisputed fact that the Deputy Attorney General was on a sabbatical at the relevant time and that he was not generally on campus. I also accept the evidence of the Deputy Attorney General that controversies, such as the one generated by the applicant’s article, were relatively commonplace at York University, including at Osgoode Hall Law School. What was undoubtedly seen to be a significant event to the applicant (and the other law student involved) would not have been viewed by long-serving Professors and other staff at the University with the same degree of memorableness. I note on this point that the Deputy Attorney General had more than twenty-five years of experience with, and exposure to, the on-campus activities of York University.

[51] Finally, the applicant has not satisfied me that there was the encounter at Convocation between the Deputy Attorney General and him that he says occurred. In his responding affidavit, the Deputy Attorney General said that he was a member of the platform party and was thus in another area of the ceremony for thirty minutes prior to the ceremony starting. He said, consequently, he could not have encountered the applicant prior to the ceremony as the applicant contends. A video of the Convocation confirms that the Deputy Attorney General was a member of the platform committee as he is seen on the platform with other dignitaries.

[52] Faced with this evidence, the applicant contended before me that the Deputy Attorney General did come into the ceremony with the platform committee, but then separated from that group to approach the applicant and engage in the alleged exchange. This version of the encounter is very different than the recitation of the encounter that is contained in the applicant’s original affidavit. In that affidavit, he makes no mention of the Deputy Attorney General coming into the ceremony as part of the platform committee but rather says that, as he entered into the tent where the ceremony was to take place, he “bumped into” the Deputy Attorney General. All of this took place some time before the ceremony commenced. The conflict between those two renditions of the encounter is plain.

[53] Further, the suggestion that the Deputy Attorney General would have left the other members of the platform committee, as they were walking into the ceremony as part of its opening, defies common sense. It would have meant that the Deputy Attorney General, after the encounter with the applicant, would have had to go up to the platform out of place and trailing the others. To the limited degree that it assists, I note that the video of the Convocation shows the Deputy Attorney General already on the platform when the concluding group of dignitaries are proceeding up to the platform.

[54] On the financial issue, there is even less to give rise to any conclusion of bias. Even taking those events at their highest for the applicant, there is so little involved in the issue that no one could reasonably think it would give rise to such a state of animosity between the two that the Deputy Attorney General would remember it, and have it colour his attitude towards the applicant, over a decade later.

[55] Even assuming that there was, back in 2001-2003, some interaction between the applicant and the Deputy Attorney General, the evidence does not seriously call into question the assertion of the Deputy Attorney General that he had no recollection of the applicant, or of these events, at the time that he considered the request for his consent to a direct indictment. The state of the evidence also does not satisfy me that any interaction between the two was of such a nature and kind that it would establish that the Deputy Attorney General had a degree of animus towards the applicant that, over a decade later, he would be motivated by that animus in his consideration of whether or not to prefer the indictment. Consequently, I conclude that the applicant has failed to establish any actual bias on the part of the Deputy Attorney General, nor do I believe that any rational informed observer would conclude that there would exist any reasonable apprehension of bias in these circumstances.

[56] The test for a reasonable apprehension of bias is a high one: R. v. S. (R.D.), 1997 SCC 324, [1997] 3 S.C.R. 484. It is one that the applicant has not met in this application.

(ii) No opportunity to be heard

[57] There are two other issues raised by the applicant that I can deal with more briefly. The applicant contends that he ought to have been given an opportunity to be heard, or to make submissions, before the Deputy Attorney General consented to the direct indictment. The Ontario Crown Policy Manual does provide, as one of the steps in the process for preferring an indictment, that the Deputy Director, International and Criminal Division Support, Crown Law Office – Criminal;

… should notify counsel for the accused of the fact that a request has been made and should provide defence counsel with an opportunity to respond in writing.

[58] There is, however, an exception to that policy. The policy provides that:

In exceptional circumstances, such as where there is a risk that the accused will abscond if counsel is notified, this requirement need not apply.

[59] There was information known to the police and the Crown that the applicant had taken up residence in Greece and was intending to make that residence permanent. Indeed, as I earlier noted, the applicant was in Greece at the time of the murder. There was, as a result, a basis for the above-noted exception to apply.

[60] In any event, policies are not the same as legal requirements. There is no legal requirement to provide the accused person with an opportunity to make submissions before an indictment is preferred: R. v. Ahmad, [2008] O.J. No. 4277 (S.C.J.) at para. 118; R. v. Saikaly, [1979] O.J. No. 94 (C.A.) at para. 17.

[61] There is no basis, therefore, for quashing the direct indictment on this ground.

(iii) Insufficient consideration of the facts

[62] The last issue, which was only advanced as the hearing concluded, is that the Deputy Attorney General did not properly consider the material that he was given before deciding to provide his consent to the direct indictment. This issue arose because the Deputy Attorney General candidly acknowledged that he did not read the entire package of material that was given to him. Of the twelve different packets of information provided as parts of the total package of information, the Deputy Attorney General said that he remembered reading six, but could not recall if he had read the other six.

[63] The applicant contends that the Deputy Attorney General was required to read all of the material that he was given. I do not know of any principle, and none was cited to me, that makes it a legal requirement that a decision-maker must read every page that s/he is provided before a decision can be made. A decision-maker is entitled to decide what material s/he will review in order to be satisfied regarding the decision that is to be made. Judges are not required to read every piece of paper that is filed on a motion or an appeal before they are entitled to reach a decision. The Deputy Attorney General is not in any different position regarding the task that was before him. I note in that regard that, of the items that the Deputy Attorney General could not recollect reading, one can understand why he might have concluded that those items did not require a review. For example, having read the reasons for discharge by the preliminary hearing judge, it would be reasonable to conclude that the submissions of counsel before the preliminary hearing judge might not warrant a review. Similarly, two decisions on bail applications by the applicant, both of which were dismissed, might not appear to be particularly relevant to the decision that the Deputy Attorney General was called upon to make.

[64] The Deputy Attorney General was entitled to review what he considered necessary for the purpose of making his decision. Again, there is no basis for quashing the direct indictment on this ground.

Conclusion

[65] The application to quash the direct indictment is dismissed.

NORDHEIMER J.

Released: September 30, 2016

Footnotes

[1] I should note that the respondent had different counsel when the matter began. I have chosen, in these reasons, to reflect the appearances as they existed at the time that the main application was argued on September 21, 2016.

[2] Similarly, Mr. Papasotiriou-Lanteigne had counsel on this matter when it began. Mr. Papasotiriou-Lanteigne subsequently decided to act on his own behalf.

[3] I say arguably narrower since it is not clear that the scope is narrower in light of the continuing disclosure obligations on parties in civil proceedings as reflected, for example, in r. 31.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Whether it is or is not narrower is an issue that I do not need to resolve here.