Superior Court of Justice – Ontario

Citation: R. v. Papasotiriou-Lanteigne, 2017 ONSC 5607 Court File No.: CR-14-10000717 Date: 2017-09-21

Between: Her Majesty the Queen (Respondent)

• and - Demitry Papasotiriou-Lanteigne and Mladen (Michael) Ivezic (Applicants)

Counsel: H. Goody, A. Tenhouse & P. Santora, for the respondent S. J. von Achten, for the applicants

Heard: September 13, 2017

Before: Nordheimer J.

Reasons for Decision

[1] The applicants are charged with first degree murder. They seek to adduce evidence at the trial of an alternate suspect. There are two aspects to this application as the applicants seek to adduce evidence both of a known third party suspect and of an unknown third party suspect. However, because of late developments regarding the potential unknown third party suspect, it was agreed that that latter aspect of the application would be adjourned to another date and that only the known third party suspect aspect would be dealt with at this time.

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] At the time of the murder, Mr. Papasotiriou-Lanteigne was living in Greece. Mr. Ivezic was living in Mississauga.

[4] The theory of the Crown with respect to the murder is that Mr. Papasotiriou-Lanteigne was having an affair with Mr. Ivezic and that they two of them decided to kill Mr. Lanteigne in order to obtain the insurance proceeds that were payable on his life. To that end, the Crown says that Mr. Ivezic was provided by Mr. Papasotiriou-Lanteigne with the passcode (or a fob) for the alarm system at the matrimonial home, that this allowed Mr. Ivezic to enter the home without tripping the alarm system, that he then lay in wait for Mr. Lanteigne to return to the matrimonial home and that, when Mr. Lanteigne did return to the matrimonial home after he finished work, Mr. Ivezic struck Mr. Lanteigne in the head one or more times causing Mr. Lanteigne’s death.

[5] In terms of the Crown’s evidence in support of its theory as to how the murder came about, there is no apparent dispute that there were significant insurance proceeds payable on the death of Mr. Lanteigne nor is there any apparent dispute that Mr. Papasotiriou-Lanteigne and Mr. Ivezic were having an affair. There is a dispute over whether DNA found under the fingernails of Mr. Lanteigne belongs to Mr. Ivezic but that is also part of the Crown’s evidence.

The known alternate suspect

[6] The defence wishes to lead evidence pointing to Jarvis Belding as an alternate suspect. The basis for the identification of Mr. Belding as an alternate suspect arises from the following asserted facts:

(i) Mr. Belding and Mr. Lanteigne had been a common law couple for twelve years. That relationship broke up in 1999. It is alleged that the break-up was acrimonious.

(ii) Mr. Belding and Mr. Lanteigne fought physically on many occasions.

(iii) Mr. Belding is an alchoholic and this is said to have been the reason for the break-up.

(iv) Mr. Belding has a criminal record.

(v) Mr. Belding allegedly “raped” Mr. Lanteigne in 2004. No report was made about this to the police.

(vi) Mr. Belding was continuously jealous of any relationship that Mr. Lanteigne had with any other man.

(vii) Mr. Belding constantly tried to insert himself into Mr. Lanteigne’s life after the break-up. He was infatuated with Mr. Lanteigne.

(viii) Mr. Belding slapped Mr. Lanteigne when he heard that Mr. Lanteigne was going to marry Mr. Papasotiriou-Lanteigne. As a consequence, Mr. Belding was not invited to the wedding.

(ix) Mr. Belding wanted to move into the matrimonial home on Ossington Avenue but this did not occur. While it is suggested that Mr. Belding may, at some point, have had a key to the matrimonial home, there is no evdience that Mr. Belding ever had the passcode (or a fob) for the alarm system.

(x) Mr. Belding and Mr. Lanteigne had a joint line of credit that continued after they had broken up. It is alleged that Mr. Belding and Mr. Lanteigne fought frequently over this line of credit.

(xi) Mr. Belding was encouraging Mr. Lanteigne to divorce Mr. Papasotiriou-Lanteigne.

[7] Those asserted facts are all contained in an affidavit sworn by Mr. Ivezic. Mr. Papasotiriou-Lanteigne has filed a separate affidavit stating that he worked with Mr. Ivezic in the preparation of the affidavit and that “I adopt the contents of Michael’s affidavit for this Application as my own”. That is not, in my view, the proper way for this evidence to have been placed before the court. To the degree that there is any direct knowledge of the alleged facts, it is knowledge that is in the possession of Mr. Papasotiriou-Lanteigne and yet he does not directly swear to the truth of the matters. It is not clear to me why the information was put before me in this fashion but it does cause me concern in terms of the degree of reliance I should place on it.

[8] Putting the issue of reliance aside, it is clear that much of the information in Mr. Ivezic’s affidavit arises from indirect knowledge. For example, the instance of the alleged “rape” could not be directly known by Mr. Ivezic, or by Mr. Papasotiriou-Lanteigne for that matter. As the Crown points out, there are other meanings that could arise from the words used by Mr. Belding when he described this sexual encounter to the police as “a little bit forced”.

[9] In terms of Mr. Belding’s criminal record, it reveals convictions in New Brunswick in 1977 for arson, in 1978 for attempted break and enter, and in 1986 for theft under $1,000. It is not clear how any of those convictions would support an assertion that Mr. Belding would be involved in the murder of Mr. Lanteigne.

[10] Similarly, the information provided as to the nature of the ongoing relationship between Mr. Lanteigne and Mr. Belding suggests that Mr. Belding was “infatuated” with Mr. Lanteigne and completely devoted to him. This also does not suggest a reason for Mr. Belding to be involved in his murder. I note, on this point, that Mr. Papasotiriou-Lanteigne was in Greece at the time with no apparent intention to return to Toronto.

[11] The legal principles applicable to an application to adduce evidence of a known alternate suspect are set out in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 where Abella J. said, at para. 47:

The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative.

[12] This requirement was reinforced in the more recent decision of R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 where Karakatsanis J. said, at para. 24:

In order for evidence relating to a known third party suspect to have any probative value, the evidence must show a sufficient connection between the third person and the crime for which the accused is charged [citations omitted]. The defence points to such evidence to raise a reasonable doubt that someone else committed the crime in question. Evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection.

[13] As the argument of this aspect of the application progressed, it became apparent that the key to the defence argument that Mr. Belding qualifies as a known alternate suspect is the assertion that he knew the manner in which Mr. Lanteigne had been killed, i.e., a blow to the back of the head, a fact that the police had kept secret from the public. This assertion is based on a statement that a witness, Claudia Ammar, gave to the police in which she said that it was Mr. Belding that had told her on Friday, March 4, 2011, that “there was trauma to the head and that there was a lot of blood”. It should be noted that on Saturday, March 5, 2011, the police issued a news release in relation to the murder that said, in part, that “police located a man with obvious signs of trauma to the body”.

[14] I am prepared to accept that if there was direct evidence that Mr. Belding knew a specific detail about the murder that only the person who committed the act could know, that would undoubtedly provide a sufficient connection between Mr. Belding and the murder to warrant the defence being permitted to lead evidence of an alternate suspect. But that is not this case. The evidence is not direct. It is second-hand. Further, the evidence is ambiguous because, in her interview with the police, Ms. Ammar was uncertain when she was told this information. She actually said that “I think it was Friday”.

[15] Still further, Ms. Ammar gave evidence at the preliminary inquiry which was very different from her police statement. At the preliminary inquiry, Ms. Ammar said that she had found out about the death of Mr. Lanteigne on Thursday, March 3 and that she did so from her mother who had heard about the death from another person, Christian Solis, who had, in turn, been told by Mr. Belding. In addition, Ms. Ammar said that she “probably” spoke to Mr. Belding that same day but then added that Mr. Belding didn’t know what had happened to Mr. Lanteigne other than the fact that he was dead.

[16] Mr. Belding also gave evidence at the preliminary hearing. He said that he heard about the death of Mr. Lanteigne from yet another person, Grazia Masi. Grazia Masi is the friend of Mr. Lanteigne who became concerned about his whereabouts such that she went to the matrimonial home on Ossington and eventually called the police, on two separate occasions, to express her concerns about his apparent disappearance. It was on the second attendance by the police at the matrimonial home, that an officer discovered the lifeless body of Mr. Lanteigne. Mr. Lanteigne was lying on the floor in the front hallway in a pool of blood. Ms. Masi was present when the discovery occurred. It is unclear whether Ms. Masi saw this or whether she was told about it by the police.

[17] Lastly on this point, neither Ms. Ammar nor Mr. Belding were questioned at the preliminary inquiry about the statement that Ms. Ammar made to the police and which she attributed to Mr. Belding.

[18] All of that said, given the obvious problems with Ms. Ammar’s statement to the police, if there was other evidence that might support a sufficient connection, then that evidence could compensate for the deficiencies. However, there is not.

[19] The rest of the evidence filed by the applicants fails to establish a sufficient connection between Mr. Belding and the murder of Mr. Lanteigne. I return to the factors mentioned by Karakatsanis J. in Grant, that is, “motive, the means, or the propensity to commit the crime”.

[20] In terms of motive, I am prepared to accept that Mr. Belding did not react well to the break-up of his relationship with Mr. Lanteigne and I am prepared to accept that he did not like the fact that Mr. Lanteigne had married Mr. Papasotiriou-Lanteigne. However, the evidence falls woefully short of establishing a motive for Mr. Belding to have committed the planned and deliberate murder of Mr. Lanteigne. Indeed, the defence assertion that Mr. Belding was “infatuated” and “obsessed” with Mr. Lanteigne would suggest that causing harm to Mr. Lanteigne would have been the furthest thing from Mr. Belding’s mind. Further, the defence cannot point to any triggering event that would have caused Mr. Belding to want to kill Mr. Lanteigne seven years after the marriage and at a time when there appear to have been problems in the relationship.

[21] In terms of the means to commit the crime, the defence points to two things. One is evidence from a neighbour of Mr. Lanteigne that on the evening of Tuesday, March 1 he saw two people in the kitchen of the matrimonial home with Mr. Lanteigne. The defence contends that one of these people was Mr. Belding and that he remained in the home until Mr. Lanteigne returned the next day when he was killed.

[22] The defence is unable to point to any evidence that would establish, or even suggest, that one of these two persons was Mr. Belding. First is the fact that the neighbour was not certain that he had seen these persons on Tuesday, March 1, as opposed to some other time. Second, while the neighbour was certain that one of the two persons he had seen was a female, he was uncertain as to the gender of the other person. Third, the neighbour provided a description of the female that fitted Grazia Masi, Mr. Lanteigne’s friend. Importantly, Ms. Masi gave evidence that she had not been at the matrimonial home on Tuesday, March 1.

[23] Further, the defence fails to explain, if Mr. Lanteigne did not stay in the matrimonial home on the night of March 1, why it is that he would have left Mr. Belding in the home after he left. There is also no explanation for what happened to the other person.

[24] Finally, as an apparent route around all of these problems, the defence says that there is some evidence that Mr. Belding had a key to the matrimonial home and thus could have gained entry to the home to lie in wait for Mr. Lanteigne. On that point, not only is the evidence about Mr. Belding having a key extremely vague, the possession of a key would not explain how Mr. Belding could avoid the alarm system that was activated in the matrimonial home.

[25] In terms of any propensity to commit the crime, there are no recorded threats by Mr. Belding. While there are some instances of violence between Mr. Belding and Mr. Lanteigne (which Mr. Belding described as “lovers’ spats”), all of these instances predate the murder by at least seven years, and likely longer. There is no evidence of recent acts of violence. In addition, Mr. Belding’s very dated criminal record does not provide any foundation to suggest that he had any propensity to commit the crime.

[26] In the end result, it is important to remember two things with respect to this form of application. One is that there must be a “sufficient” connection between the alternate suspect and the crime. That standard requires more than theories or possibilities. The other is the reason why, generally speaking, courts are leery of permitting evidence to be led of alternate suspects. That reluctance is described by Karakatsansis J. in Grant, at para. 4:

The integrity of the administration of justice requires that the proceedings stay focused on the indicted crime and not devolve into trials within a trial about matters that may not be sufficiently connected to the case. Such tangents risk causing delays, confusion and distractions that undermine the trial’s truth-seeking function. This risk is especially heightened where the defence seeks to introduce other alleged suspects or crimes into the trial.

Conclusion

[27] I conclude that the proposed alternate suspect evidence relating to Mr. Belding has an insufficient connection to the murder and thus is inadmissible.

NORDHEIMER J.

Released: September 21, 2017