Court File and Parties
COURT FILE NO.: CR-14-10000717 DATE: 20170605
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
F. Addario, H. Goody, A. Tenhouse & P. Santora for the respondent
- and -
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC Applicants
S. J. von Achten, for the applicants
HEARD: May 31, 2017
Nordheimer J.:
[1] Demitry Papasotiriou-Lanteigne and Michael Ivezic are jointly charged with first degree murder. They bring this application for an order permitting Susan von Achten to be solicitor of record for both of them. This application follows on an earlier application brought by the Crown that successfully obtained an order removing Ms. von Achten as solicitor of record for Mr. Ivezic. [^1]
[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 matrimonial 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 November 2, 2012, while in Canada, Mr. Papasotiriou-Lanteigne was arrested and charged with first degree murder. 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.
[4] At the preliminary hearing in this matter, Mr. Ivezic was represented by Ms. von Achten. Mr. Papasotiriou-Lanteigne was represented by James Lockyer. On September 12, 2014, the preliminary inquiry judge committed Mr. Ivezic to trial, but discharged Mr. Papasotiriou-Lanteigne. 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.
[5] 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 most appearances on his own behalf. However, Mr. Papasotiriou-Lanteigne always made it clear that he intended to retain Mr. Lockyer for the trial.
[6] 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 disclosure issues 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 advised that she was in the process of being retained by Mr. Ivezic.
[7] 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.
[8] 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. In addition, 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.
[9] 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. This eventually led to the Crown bringing an application to remove Ms. von Achten as solicitor of record for Mr. Ivezic, which I granted.
[10] In response to that decision, both accused now wish to jointly retain Ms. von Achten as their counsel for trial. Both accused have separately received independent legal advice regarding this decision.
[11] Both accused are adamant that there is no conflict in their respective positions in terms of their defence of the first degree murder charge. Mr. Ivezic has filed a lengthy affidavit setting out the nature of what he refers to as the “common defence” that he and Mr. Papasotiriou-Lanteigne have in respect of the murder charge. Mr. Papasotiriou-Lanteigne accepts and relies on that affidavit.
[12] Further, both accused were cross-examined before me and both maintained that they have a common defence and that there is no conflict between the two. Both accused are also adamant that Ms. von Achten is the only lawyer who they want to represent them on this charge. They point to her extensive involvement in the case to date and the confidence that they have in her ability to represent them fully and effectively.
[13] That said, both accused were compelled to acknowledge that, while they may have a common defence, they do not have the same defence. Both accused also acknowledged the possibility of a conflict arising during the course of the trial (a prospect that both of them view as extremely remote) and that, if such a conflict arose, Ms. von Achten would not be able to continue to act for either of them. While this latter acknowledgement conflicts with the contents of the joint retainer letters, which purported to allow Ms. von Achten to continue to act for one or the other in such a situation (presumably the choice being hers), both accused now acknowledge that that could not happen, as does Ms. von Achten. Both accused also acknowledge that, if Ms. von Achten was required to remove herself as their lawyer, they would be compelled to continue the trial without counsel.
[14] The question then is whether, in these rather unique circumstances, these two accused are entitled to have Ms. von Achten represent them jointly at the trial.
Conflict of interest
[15] While I addressed the principles that apply to such motions in my earlier decision, I believe it is appropriate to once again set out some of those principles. 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. 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.
[16] What constitutes compelling reasons? In answering that question, certain core principles are to be applied. Some of those principles, as they relate to this case, include:
(i) 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.
(ii) 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.).
(iii) 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.).
(iv) 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.
(v) Counsel who undertake the joint representation of co-accused assume the heavy burden of ensuring that they are not placed in a position of representing interests which are or may be in conflict: R. v. Widdifield.
[17] Are there compelling reasons to prohibit Ms. von Achten from representing both accused? I found such compelling reasons in my earlier decision but the circumstances have changed since that time. In the earlier situation, Ms. von Achten purported to act for these two accused in separate proceedings – in the murder prosecution for Mr. Ivezic but in a civil proceeding for Mr. Papasotiriou-Lanteigne. That reality set up an obvious conflict because Ms. von Achten would have a single duty to Mr. Ivezic in the murder prosecution that might require her to take steps (e.g. cross-examining Mr. Papapsotiriou-Lanteigne) that would be in direct conflict with her duty to her other client, Mr. Papapsotiriou-Lanteigne. Those forms of conflict disappear if there is a joint retainer by both accused. For example, Ms. von Achten would not be in a position of cross-examining Mr. Papapsotiriou-Lanteigne so that obvious difficulty disappears – a fact that Crown counsel acknowledges.
[18] That is not a complete answer to the question, though. What the joint retainer does not remove as a difficulty are the realities that flow from the fact that the case against Mr. Ivezic is different from, and stronger than, the case against Mr. Papapsotiriou-Lanteigne. That fact cannot be denied. What that fact leads to is the possibility that trial counsel will find herself in the awkward position of having to implore the jury to reach certain conclusions regarding the accused that may not sit comfortably together. Speaking more practically, there is the possibility that trial counsel will have to ask the jury to accept certain propositions on behalf of Mr. Ivezic, that the jury might well not accept, and then turn around and, notwithstanding what the jury might think about the propositions regarding Mr. Ivezic, ask the jury to accept different propositions regarding Mr. Papapsotiriou-Lanteigne. To say that this is not the ideal situation for trial counsel may be an understatement. It is not the ideal situation for the accused either since a jury that rejects explanations for one accused may have their skepticism flow over to the other accused, whether consciously or unconsciously, and despite the appropriate jury instruction. As Doherty J.A. observed in Widdifield, at para. 72:
Where two persons who are alleged to have jointly committed a crime are tried together there is always a danger that the case against one accused will infect the jury’s assessment of the case against the other.
[19] That said, the problems associated with that tactical disadvantage do not, by themselves, equate to a conflict of interest leading to disqualification. In other words, tactical gains or losses do not strike me as constituting “compelling reasons” to disqualify counsel of choice, as that term is used in Re Regina and Speid. If an accused person is fully aware of the drawbacks involved in selecting a particular counsel to represent him/her, and is prepared to accept those drawbacks in the interests of having counsel of his/her choice, I do not see that the court has the right to interfere with that choice. The observations of Doherty J.A., again from Widdifield at para. 40, albeit in a different context, are instructive:
The question is not whether the appellants could have been more effectively represented by separate counsel, but whether their joint representation placed counsel in a conflict of interests such that the assistance provided to either or both clients was adversely affected.
[20] In addition to that concern, I recognize that there is the reality that, while Mr. Papasotiriou-Lanteigne and Mr. Ivezic may believe that their interests are aligned at this stage, there is no guarantee that their positions will remain so as the trial unfolds. On this point, I again set out the observation of Rehnquist C.J. of the United States Supreme Court, 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.
[21] There may well be something that happens during the course of the trial that causes a rift to develop between Mr. Papasotiriou-Lanteigne and Mr. Ivezic or a rift between either of them and Ms. von Achten. If that happens, Ms. von Achten could not continue to act for either accused. Both accused and Ms. von Achten acknowledge that would be the case. If that were to happen, as I pointed out to both accused, it seems unlikely that a mistrial would result. Rather, the trial would more likely proceed with both accused unrepresented. Both accused say that they recognize that is what would happen and they are prepared to accept that result should it come to pass. I should say, on this point, that both accused point out that if Ms. von Achten is not allowed to be their joint counsel, they intend to proceed to trial as scheduled (a little more than three months from now) without counsel in any event.
[22] In my earlier decision, I noted two overarching concerns that arise in the situation where the ability of counsel to act for a party is brought into question. One is the observation made by Doherty J.A. in Widdifield, at para. 23 that “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”. The other is the observation made by the Court of Appeal in Robillard regarding the public interest in the criminal justice process and the concern over any form of impropriety that might appear in the conduct of the trial.
[23] A joint retainer, in these circumstances, does not, in my view, give rise to either of those concerns. In terms of the first concern, there is no reason to believe that Ms. von Achten will do anything other than give her undivided loyalty to both accused if she is jointly defending them. If either accused believes that she is not doing that, then that accused can discharge Ms. von Achten, recognizing that that decision will result in both accused then being without counsel. I repeat that both accused have acknowledged that would be the result and are content to assume that risk.
[24] In terms of the second concern, I do not see any reason why the public would view a joint retainer in these circumstances as giving rise to any impropriety. While it may be unusual to see two accused in a murder trial represented by the same counsel, there is no prohibition against it: Widdifield, at para. 24. The public would also appreciate that accused persons are entitled to make their own decisions regarding their counsel of choice, their defence to a charge, and the conduct of that defence. The wisdom of such decisions is not for the court to judge.
Conclusion
[25] In the end result, the real question, that this situation poses, is whether an accused person is allowed to retain counsel in circumstances where, in doing so, s/he may be jeopardizing their defence from a tactical or strategic point of view. If an accused is fully aware of the risks associated with doing so, has received independent legal advice respecting that choice, and still wishes to proceed along that path, it seems to me that the person’s constitutional right to counsel, including the presumptive right to counsel of one’s own choosing, permits the accused person to make that choice. The supervisory role of the court does not extend to substituting the course of actions that it would take in such circumstances over that of the accused person.
[26] Consequently, I have concluded that the application should be granted and that Ms. von Achten should be permitted to jointly act for Mr. Papasotiriou-Lanteigne and Mr. Ivezic at the trial. The only caveat to that conclusion is that I will require both Mr. Papasotiriou-Lanteigne and Mr. Ivezic to individually repeat their confirmations, in open court and on the record, that they understand the consequences of their decision to jointly retain Ms. von Achten and the ramifications that flow from that decision.
NORDHEIMER J.
Released: June 5, 2017
COURT FILE NO.: CR-14-10000717 SUPERIOR COURT OF JUSTICE Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC Applicants
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: