CITATION: R. v. Papasotiriou-Lanteigne, 2017 ONSC 5337
COURT FILE NO.: CR-14-10000717
DATE: 20170908
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
F. Addario, for the applicant
S. J. von Achten & M. Osadet, for the respondents
HEARD: September 5, 2017
Nordheimer J.:
[1] Within this prosecution for first degree murder, the defence has brought a number of pre-trial applications, one of which seeks to have Crown counsel removed as prosecuting counsel together with a request for costs in an amount slightly in excess of $1 million. In response to that specific pre-trial application, the Crown brings this application by which it seeks to have the main application summarily dismissed pursuant to rule 34.02 of the Criminal Proceedings Rules, SI/2012-7 and the principles most recently enunciated in R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31.
Background
[2] The background facts, as they relate to this application, are as follows. Mr. 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 on Ossington Avenue in Toronto.
[3] On November 2, 2012, Mr. Papasotiriou-Lanteigne was arrested and charged with first degree murder. On January 8, 2013, Michael 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] 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. The preliminary inquiry judge gave extensive reasons for his decisions.
[5] The Crown immediately launched a certiorari application challenging the preliminary inquiry judge’s decision to discharge Mr. Papasotiriou-Lanteigne. Concurrently, the Crown sought the consent of the Deputy-Attorney General for a direct indictment. On October 28, 2014, the Deputy Attorney General consented to a direct indictment. The next day, Mr. Papasotiriou-Lanteigne was arrested on that indictment.
[6] The prosecution has proceeded in this court since that time. I have been case managing this prosecution and I am also the designated trial judge. There have been more than fifty appearances as part of the case management process, including more than thirty in which the issue of disclosure has played a role.[^1]
[7] The respondents advance more than forty grounds or allegations against Crown counsel as the basis for their application to have Crown counsel removed. I do not intend to reproduce all of those grounds. It is sufficient to provide a brief sampling:
(i) The Crowns have hidden, suppressed or altered disclosure ab initio.
(ii) The Crowns/Police have altered, re-written, deleted and/or otherwise interfered with police officers’ notes; CFS reports or other documents or items touching and concerning the investigation of this homicide.
(iii) The Crowns have misstated, lied, misconstrued, misled the Defence and this Honourable Court in the prosecution of this matter.
(iv) The Crowns have colluded with and acquiesced with the obstruction of justice of the Toronto Police Service. The Crowns have been willfully blind to the conduct of the Toronto Police Service. They have been reckless and/or negligent in their conduct of the prosecution of this proceeding.
(v) The conduct of the Crown has systematically undermined the administration of justice and frustrated the [respondents’] rights to a fair hearing and the right to make full answer and defence.
(vi) The Crowns must have known that the police were hiding evidence and information, because of the delays and the failures to provide disclosure as was directed or ordered by the court for them to do, makes the Crowns complicit in the misconduct of the police and responsible.
[8] The application to remove Crown counsel is supported by a two hundred and fifty-one paragraph affidavit from Mr. Ivezic along with a much shorter affidavit from Mr. Papasotiriou-Lanteigne.[^2]
[9] It is of some importance to the determination of this motion to understand the nature of the concerns expressed by Mr. Ivezic in the course of his affidavit. He begins by complaining about the manner in which he was extradited from Greece, and the length of time that it took, and the fact that Crown counsel have failed to provide extradition documents. I would note that not only is the matter of extradition one for the Federal, not Provincial, Crowns to address, it is not readily apparent how extradition documents could have any relevance to this prosecution. The nature of the relevance asserted by Mr. Ivezic is telling, however. He says that the failure to produce extradition documents had to do with what he alleges is the alteration of police notes. Mr. Ivezic says that original police notes were not produced “because, I suspect, they are different from what was provided to the defence”. Mr. Ivezic apparently suspects that material in the extradition proceeding would reveal those differences. It is not clear why Mr. Ivezic suspects that would be the case.
[10] On that latter point, as will be apparent from a review of Mr. Ivezic’s affidavit, it is replete with suspicion, conjecture and speculation. Mr. Ivezic is, of course, entitled to be suspicious of the actions of the police officers who investigated him. However, his suspicion cannot be a substitute for evidence and facts.
[11] Another example is where Mr. Ivezic says that he “cannot accept that the Crown did not know about all of the information that was hidden from the Defence at the Preliminary Hearing”.
[12] One of the major aspects of this hidden information is Mr. Ivezic’s contention that the disclosure of information taken from the computers found in the matrimonial home show that another person was in the home from the evening prior to the murder until the murder itself. The Crown does not accept that the computer activity supports such a contention but that is ultimately a matter for the jury to decide. However, Mr. Ivezic takes the disagreement over what the computer activity demonstrates and turns it into an allegation that Crown counsel and the police have “wilfully suppressed” evidence.
[13] Another example arises from the fact that there was a delay in Crown counsel providing copies of the Informations to Obtain that were used to obtain various search warrants and other court authorizations. Indeed, five of the ITO’s have still not been produced because they have apparently been lost by the respective court office. However, drafts of those missing ITO’s have been provided. I do not countenance the loss of important documents by court offices but the fact is that it does happen on occasion. Steps have been taken to reproduce the documents, which is the best that can be done in the circumstances. Nevertheless, Mr. Ivezic takes the loss of the documents and uses it in his affidavit to suggest that these lost ITO’s are being “suppressed”. Indeed, he goes so far as to suggest that passages from the actual ITO’s have been deleted.
[14] Mr. Ivezic also complains about the fact that not all of the police officers’ notes were scanned into the major case management system that was used at the time. While it was apparently the policy of the Toronto Police Service that officers’ notes were to be scanned into the system at the end of each shift, the officer in charge in this case acknowledges that that was not always done. However, Mr. Ivezic contends that this acknowledgement by the officer in charge is a “lie” and that the notes were, in fact, scanned into the system but the police do not want to produce the original scanned notes because they would reveal inconsistencies with the notes of the officers that have been produced.
[15] Mr. Ivezic also complains about the nature and manner of disclosure in this case. I accept that the disclosure process has been far from perfect. That fact would not make this case unique, however. Through the process of many disclosure applications, gaps and failings in the disclosure process have been filled. Mr. Ivezic is entitled to be frustrated at the failings in the disclosure process. It is one thing to be frustrated, however, and quite another to allege conspiracies and malfeasance in the disclosure process. I would note that, in some instances, it became apparent that material that Mr. Ivezic claimed not to have been disclosed to him had in fact been disclosed and Mr. Ivezic had either missed it in the disclosure or had not received it from Ms. von Achten when she had earlier been acting for him.
[16] In addition, Mr. Ivezic continues to complain about the failure of various entities, such as the Centre for Forensic Sciences (“CFS”) and the Toronto Police Service, to produce relevant material notwithstanding that I have had counsel for both of those institutions assure me, in court, that all relevant material has been produced. I note in that regard that counsel for these two institutions are completely separate from Crown counsel.
[17] I do not intend to further discuss the contents of Mr. Ivezic’s affidavit. I have provided the above outline in order to show that, for the most part, Mr. Ivezic’s complaints about the conduct of Crown counsel (and of the police) are drawn from his opinions and beliefs that are, in turn, based almost entirely on conjecture and speculation. None of that amounts to evidence. At the same time, the respondents have not advised me what evidence they can obtain, or will provide, if their motion to remove Crown counsel proceeds to a full hearing or how that evidence would assist in proving the central allegations upon which their application is based.
[18] Rule 34.02 of the Criminal Proceedings Rules 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.
[19] 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.
[20] The rule itself is not one that has been frequently resorted to. Rather, the general practice has been to permit any pre-trial application that is brought to be fully argued and determined. This general practice has recently come under some critical commentary by the Supreme Court of Canada arising out of the concern regarding the length of time that it is taking for trials to be completed. This concern was highlighted in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and reiterated in R. v. Cody.
[21] In R. v. Cody, the issue about pre-trial applications was specifically commented on by the court, at para. 38:
In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)).
[22] I agree with counsel for the applicant that the procedure referred to contemplates a relatively informal and expedient process. It does not envisage affidavits being filed, and cross-examinations being conducted, in order to determine this threshold question. To hold otherwise would be to defeat the fundamental point of the exercise. Rather, what is envisaged is that counsel will advise the court of their “best case”, assuming that there is a reasonable prospect that they could obtain all of the facts that they hope to through an evidentiary hearing, and the court will then determine if that best case could reasonably achieve the result that the party seeks.
[23] That this is the proper approach can be seen from the decision in R. v. Kutynec, which was cited in R. v. Cody, where Finlayson J.A. said, at pp. 288-89:
If the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry. In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a manner which infringed the Charter, or a finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss the motion without hearing evidence.
[24] The respondents complain that the process I have outlined denies them the opportunity to cross-examine Crown counsel. Two points can be made in response to that complaint. One is that the suggestion that the respondents are entitled to cross-examine Crown counsel, before this threshold requirement is determined, is entirely inconsistent with the rationale that is set out in R. v. Cody. The other is that it is not clear to me how counsel for the respondents intended to cross-examine Crown counsel when none of them filed an affidavit upon which cross-examination could take place.
[25] Under the process I have described, I am entitled to look at what counsel for the applicant says the evidence currently reveals, and at what counsel for the respondents asserts the evidence might become, and determine whether it would warrant this court granting an order removing Crown counsel from this prosecution. On that point, I should outline what I understand the respondents would have to demonstrate in order to justify this court removing Crown counsel from a prosecution. In that regard, I adopt the following observation made by Archibald J. in R. v. J.C., [2002] O.J. No. 1576 (S.C.J.) at para. 19:
I therefore conclude that the foundation of an appropriate recusal application against Crown counsel must be based on evidence to support the proposition that the Crown has misconducted themselves either intentionally, recklessly, or with unacceptable negligence for the purpose of undermining the integrity of the administration of justice.
Having set out the test, I will say that the bare allegations made by the respondents regarding the conduct of Crown counsel, to which I briefly referred above, might suggest that a removal order could be obtained.
[26] However, the allegations are just that – allegations. The evidence in support of those allegations is difficult to find. It is clear that the respondents do not trust Crown counsel, to put it mildly. They have their reasons for their attitudes in this respect and they are entitled to hold those attitudes. However, attitudes, opinions and beliefs are not evidence. It would not be surprising that an accused person would not necessarily trust prosecuting counsel. The question is whether there is an evidentiary foundation from which the court could draw the conclusion that the conduct of Crown counsel has crossed over the line such that their removal could be justified.
[27] As I earlier noted, this prosecution has a lengthy history. Specifically, there have been a great many complaints made by the respondents, most often by Mr. Ivezic, regarding the conduct of the Crown and the police, especially when it comes to the issue of disclosure. On that point, I should mention that there was a significant period of time when Mr. Ivezic was unrepresented. 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.
[28] During the period of time during which Mr. Ivezic was unrepresented, he brought a number of disclosure applications and also a number of third party records applications. He was assisted in these efforts by amicus who I had appointed for that purpose. This led to a number of orders that I made requiring both Crown counsel to provide further information and various third parties to do so.
[29] It was apparent to me, throughout this process, that Mr. Ivezic was of the view that he had, in effect, been “framed” by the police for the murder of Mr. Lanteigne. Mr. Ivezic challenged every aspect of the theory of the case put forward by the police and by the Crown. Mr. Ivezic also had a very obvious deep distrust of the officer in charge of the investigation. Mr. Ivezic believed that this officer had planted evidence, falsified documents, and destroyed or suppressed other information relevant to the case, all of which Mr. Ivezic contended would demonstrate that he had had nothing to do with the murder of Mr. Lanteigne.
[30] Mr. Ivezic’s belief is this regard is particularly apparent when it comes to one key piece of evidence, that is, that his DNA was found under the fingernails of the deceased. Mr. Ivezic contends that this DNA was either planted by the police or that they arranged to switch his DNA for the DNA that was actually found under the deceased’s fingernails when that DNA came to be examined by the CFS. In this regard, Mr. Ivezic contends that the CFS was complicit with the police in falsifying the DNA evidence.
[31] It was this allegation that led to third party records applications involving both the CFS and the DNA database. Information was provided by both of those institutions in response to the third party records applications. While at a much later point, and after Ms. von Achten recommenced acting for Mr. Ivezic, it appeared that this allegation was going to be abandoned, I note that the allegation is featured prominently in the affidavit that Mr. Ivezic filed on the application to have Crown counsel removed.
[32] Also as part of this allegation, Mr. Ivezic places great reliance on what he says is evidence that the report of the CFS regarding the DNA analysis was altered by the police before being disclosed to the defence. Mr. Ivezic contends that the Crown counsel were complicit in this alteration. More specifically, Mr. Ivezic points to the fact that the digital copies of the report show modification dates and different file sizes as evidence that the report was altered. However, notwithstanding that the report has now been provided directly by the CFS as a result of this concern, and that there is no evident difference between the report provided directly by CFS and that provided as part of disclosure, Mr. Ivezic maintains his position. Also, notwithstanding some inquiries by me in the course of the disclosure motions, Mr. Ivezic has not, as yet, provided any evidence from any computer expert to the effect that the modification dates or the different file sizes reflect an actual change to the document as opposed to other reasons. This is so even though Mr. Ivezic acknowledges, at one point in his affidavit, that one difference in file sizes was due to the fact that one version of the report was password protected, while the other was not.
[33] Other complaints that emanate from the respondents is that the theory of the Crown’s case has changed. There was, at one point, a belief by the Crown/police that Mr. Ivezic had, and revealed, information that only the perpetrator of the murder could have known. However, it subsequently turned out that this particular piece of information had been disseminated by at least one media outlet. That fact required the Crown to abandon that aspect of the theory of their case.
[34] The Crown is entitled to change the theory of its case. There is nothing improper in the Crown’s theory evolving as the investigation unfolds. The fact that it does so is not a basis to remove Crown counsel from the prosecution. Further, in this case, what was dropped by the Crown from its theory was but one aspect of the case. It is not as if the Crown adopted an entirely different theory. Rather, other central aspects of the Crown’s theory remain, e.g., the DNA evidence, the fact that there was a considerable insurance policy on the deceased’s life, and that Mr. Papasotiriou-Lanteigne could have provided Mr. Ivezic with the passcode to get around the security system in the matrimonial home.
[35] The respondents also point to disclosure issues that they contend demonstrate efforts by the police, aided by Crown counsel, to withhold key pieces of information that might exonerate the respondents, or at least point to other possible suspects. I have already said that disclosure in this case has been far from perfect. It is a complicated case in which a great deal of disclosure is involved, as is typical of cases that are largely circumstantial.[^3] However, issues with respect to disclosure would not, in the normal course, justify the removal of Crown counsel. It would have to be a most egregious failure in the disclosure process to provide that justification and that is not the case here. I would point out that considerable time has been spent by this court in addressing disclosure issues, as I mentioned above. Further, notwithstanding that these disclosure issues were dealt with largely in 2016, no further applications have been brought to address what is now alleged to be a failure of the Crown/police to honour disclosure that has been ordered.
[36] It must also be kept in mind that there is nothing that prevents the respondents, if they so choose, to delve into some, or all, of these issues as part of the evidence at trial. For example, it is open to the respondents to attempt to show the jury that the DNA evidence has been manipulated or is otherwise faulty. That is not the issue on this application. The issue here is whether any of these assertions of misconduct require the removal of Crown counsel from this prosecution.
[37] In the end result, I have concluded that there is no reasonable prospect that the respondents could succeed in their application to have Crown counsel removed. Indeed, I would go so far as to say that I do not see any prospect at all. Nothing will be gained by embarking on an evidentiary hearing in respect to it. I note on this point that there was a suggestion that the respondents were contemplating seeking to examine a large number of witnesses on this application. While counsel for the respondent eschewed any such intention, I do note that she did not ever advise me how many witnesses would actually be called nor how long the evidentiary hearing would take. All of this is in the context of a case that is scheduled to take many weeks to try including a number of weeks that have been set aside for a number of other pre-trial applications including, I would note, an application for a stay for delay under s. 11(b) of the Charter.
[38] In accordance with the admonition from the Supreme Court of Canada in R. v. Cody, I am not prepared to spend court time hearing evidence on an application that has no reasonable prospect of succeeding.
Conclusion
[39] The Crown’s application is granted and the respondents’ application to remove Crown counsel is summarily dismissed.
NORDHEIMER J.
Released: September 8, 2017
CITATION: R. v. Papasotiriou-Lanteigne, 2017 ONSC 5337
COURT FILE NO.: CR-14-10000717
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
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: I am adopting the count of days as provided by counsel for the applicant during the course of his submissions. [^2]: I note that the affidavit of Mr. Ivezic was not actually sworn. I assume that is because Mr. Ivezic is in custody and that he would have sworn the affidavit when he was in court for the hearing of the application which is scheduled for September 11, 2017. [^3]: I would note on this point as well that Mr. Papasotiriou-Lanteigne is a lawyer and there were complications that arose, as a result, regarding materials, including computers, seized from the matrimonial home. These complications included the need to appoint a Special Referee to review those materials for possible solicitor and client privilege.