CITATION: R. v. Papasotiriou-Lanteigne, 2017 ONSC 6251

COURT FILE NO.: CR-14-10000717

DATE: 20171020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

Applicants

H. Goody, A. Tenhouse & P. Santora, for the Respondent

S. J. Von Achten, for the Applicants

HEARD: October 12, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON alternate suspect application #2

[1] Allen Lanteigne was murdered in his home on March 2, 2011. His body was discovered, lifeless and lying in a pool of blood, the next day. He was bludgeoned to death. The key issue in this first degree murder trial is whether Mr. Ivezic did the bludgeoning, and whether Mr. Papasotiriou abetted him.

[2] The Defence wishes to call evidence that one “Branco Krieger” is actually the murderer. It has filed an application seeking permission to do so.

[3] The Crown moves to dismiss the application summarily. The Crown argues that the application on its face is insufficient to show that it has a reasonable chance of success. The Crown also argues that the application materials are so deficient that the application should not be permitted to proceed to a full hearing.

[4] This is the second alternate suspect application brought by the defence. Nordheimer J. (as he then was), dismissed the first application on September 21, 2017: R. v. Papasotiriou-Lanteigne, 2017 ONSC 5607. When Justice Nordheimer was appointed to the Ontario Court of Appeal I was appointed as the trial judge. I then heard this application. I indicated at the end of submissions that I agreed with the Crown. I dismissed the application. I indicated that I would provide reasons in due course. These are my reasons.

THE CROWN THEORY

[5] The Crown’s theory is that Mr. Ivezic bludgeoned Mr. Lanteigne to death on March 2, 2011. Mr. Papasotiriou, who was in Athens, Greece at the time, abetted him. I take the factual allegations from the synopsis that was filed at the time of the initial judicial pre-trial conference in this court. I also take some of the factual allegations as they are set out in the reasons Nakatsuru J. of the Ontario Court of Justice (as he then was), the preliminary inquiry judge:

[6] In 2004 Mr. Lanteigne and Mr. Papasotiriou were married in Toronto. They lived together at 934 Ossington Avenue from 2006 until 2010. The Ossington house was co-owned by Mr. Papasotiriou with members of his family. In 2008 they took $2 million life insurance policies on each other. Mr. Papasotiriou was a practicing lawyer. In 2009 he was accepted into a Ph.D. program in law in Switzerland. In February 2010 he left for Europe. He did not come back until after the murder except for a brief visit. When he left he wound down his legal practice. At some point in 2010 Mr. Papasotiriou left Switzerland and went to live in Greece.

[7] There were marital difficulties between Mr. Lanteigne and Mr. Papasotiriou commencing in 2008. In 2009 Mr. Papasotiriou and Mr. Ivezic began an extra-marital relationship. Mr. Ivezic was married to a woman. They have children together. The relationship between Mr. Papasotiriou and Mr. Ivezic continued. Mr. Ivezic’s wife became aware of the relationship. So did Mr. Lanteigne.

[8] Throughout 2010 and early 2011 there were many emails between Mr. Papasotiriou and Mr. Lanteigne. These emails were characterized by constant requests from Mr. Papasotiriou to Mr. Lanteigne for money. Mr. Papasotiriou said that he needed the money for various business projects in Greece. Mr. Lanteigne continued to send Mr. Papasotiriou money even as he worked two jobs and drained his savings. Mr. Lanteigne resented that Mr. Papasotiriou appeared to be enjoying the high life in Europe while he worked. He resented that Mr. Papasotiriou was spending time with Mr. Ivezic in Europe. Mr. Lanteigne also resented that he was paying for Mr. Ivezic’s travel.

[9] Telephone records indicate that on February 28, 2011, two days prior to the murder, Mr. Ivezic and Mr. Papasotiriou had a lengthy telephone call. On March 1, 2011 they had three telephone calls. On March 2, 2011, they had three more telephone calls.

[10] Mr. Lanteigne and Mr. Papasotiriou had email conversations on February 28, and March 1 and 2, 2011. On February 28, 2011 Mr. Papasotiriou emailed Mr. Lanteigne at work and asked him when he would be home so that he could call. Mr. Lanteigne replied that he would be working that night but would be home the following two evenings. There was another email exchange on March 1, 2011. They discussed the timing of a possible telephone call for the next day. On March 2, 2011 the following email exchanges occurred:

• 9:19 am – Mr. Papasotiriou emailed Mr. Lanteigne at working asking him to call.
• 9:31 am – Mr. Lanteigne emailed back that he was unable to call and did not even have a number for Mr. Papasotiriou.
• 12:59 pm – Mr. Papasotiriou asked Mr. Lanteigne to call after work. He told him not to “dilly dally on your way home” and gave him telephone numbers to call.

[11] The night of March 1, 2011 was the night before the murder. Mr. Lanteigne spoke to his friend Grazia Masi by cell phone twice. Ms. Masi testified at the preliminary inquiry that they made plans for dinner the next day. Cell tower records indicate that Mr. Lanteigne’s cell phone was within close proximity to the Ossington house at the time of the calls. The history of a computer at the Ossington house shows that it made various internet searches that night.

[12] On March 2, 2011, Mr. Lanteigne went to work at his job at the University of Toronto. One of his co-workers testified at the preliminary inquiry that he left work just after 5:00 pm. The alarm records from the Ossington house appear to show that the front door was opened at 5:19 pm and the alarm disarmed. The alarm panel was armed again at 5:35 pm. The front door was opened again at 5:37 pm but a certain action that was supposed to be taken on the alarm panel was not. As a result, the alarm sounded. The alarm company unsuccessfully attempted to contact Mr. Lanteigne. The alarm company then called the Toronto Police. Two uniformed officers did not see anything amiss at the Ossington house. It was dark and they could not peer into the house. They concluded that the alarm was false.

[13] Ms. Masi, however, was concerned. She could not get in touch with Mr. Lanteigne on March 2, 2011. On March 3, 2011, she went over to the Ossington house during the day and saw through the window what appeared to be a body on the floor. She called the police. A Toronto Police officer forced entry into the home and found Mr. Lanteigne’s body.

[14] Mr. Lanteigne’s face and skull had been battered and he was dead. The cause of death was blunt impact trauma to the head. The pathologist noted contusions and abrasions on Mr. Lanteigne. The contusions and abrasions were consistent with a violent struggle. Clippings of Mr. Lanteigne’s fingernails were taken by Toronto Police forensic officers. Material containing foreign DNA was found under the fingernails of Mr. Lanteigne’s right hand. Mr. Lanteigne was wearing a glove on his left hand. Mr. Ivezic was identified as the donor of the foreign DNA. The murder weapon was never found. Mr. Lanteigne’s wallet was not taken. There was no sign of robbery. The Crown alleges that Mr. Papasotiriou arranged for Mr. Lanteigne to be home at a particular time so that Mr. Ivezic could bludgeon him to death. The Crown also alleges that Mr. Papasotiriou provided Mr. Ivezic either either the alarm code or a key fob for the alarm so that Mr. Ivezic could gain entry.

[15] After the murder, Mr. Papasotiriou attempted to collect financial benefits as a surviving spouse, including the $2 million life insurance policy. Mr. Ivezic assisted him as Mr. Papasotiriou was in Greece. Mr. Ivezic attended various institutions on Mr. Papasotiriou’s behalf in order to collect survivor benefits.

THE DEFENCE THEORY

[16] The defence theory, as advanced in this Application, is this: That real killer is a man named “Branco Krieger.” The facts in support of this theory are set out in two affidavits of Mr. Papasotiriou. Mr. Lanteigne met “Branco Krieger” through a fetish website called Diaper Bois. The night before the murder Mr. Lanteigne had dinner with one or two men and one woman. One of these men was “Branco Krieger.” Mr. Lanteigne left the Ossington house that evening. “Branco Krieger” remained in the house alone. “Branco Krieger” accessed the internet from a computer in the Ossington house while Mr. Lanteigne was not there. “Branco Krieger” uploaded a photograph of his naked torso wearing a diaper (which I will refer to as the “torso photo”). Mr. Lanteigne went directly to work the next day from wherever it was that he spent the night. The alarm company records reveal that the front door alarm was armed at 8:42 the night before. It was not tripped again until the next day at 5:19 pm. That was when Mr. Lanteigne came home from work. “Branco Krieger” stayed in the house overnight by himself. He attacked Mr. Lanteigne when he came home, tried to set the alarm, and then left the house.

[17] Mr. Papasotiriou attached text messages to his affidavits. The text messages are between Mr. Lanteigne and a friend named Wayne. The messages were exchanged on February 3 and 15, 2011. The messages indicate on the night of February 1 or 2, 2011 Mr. Lanteigne had a sexual encounter with a young Brazilian student. Mr. Lanteigne, Wayne, and the young Brazilian man shared a sexual fetish involving diapers. Mr. Lanteigne told Wayne that the young Brazilian man went by the name “Branco” on the website Diaper Bois.

[18] Mr. Papasotiriou indicates in his affidavit that he created a user account on Diaper Bois in order to find “Branco”. He searched the name “Branco”. He found a profile under that name. There were photographs associated to the profile. Mr. Papasotiriou downloaded the photographs. He compared them to the torso photo. He opines that the torso of “Branco” on the Diaper Bois website is similar to the torso photo. “Branco”, according to the Diaper Bois profile, is a 34 year old man living Brazil. Mr. Papasotiriou’s affidavit includes as attachments photographs showing “Branco” in a diaper.

[19] Mr. Papasotiriou indicates in his affidavit that he searched the name “Branco” on Facebook. He found that Branco’s full name is “Branco Krieger”. From photographs on Facebook, he says, it is clear that “Branco” from Diaper Bois is “Branco Krieger” from Brazil. One of the photographs of “Branco Krieger” from Facebook is attached to Mr. Papasotiriou’s affidavit. It shows “Branco Krieger” at Maple Leaf Gardens in Toronto.

[20] Mr. Papasotiriou further states in his affidavit that he attempted communication with “Branco Krieger” through Snapchat. He states that he also tried to exchange information with “Branco Krieger” through WhatsApp. He says that “Branco Krieger” sent naked pictures of himself on Snapchat. Mr. Papasotiriou conducted a detailed examination of the physical characteristics of “Branco Krieger” and the man in the torso photograph. He concluded that they are the same person.

[21] Mr. Papasotiriou asked “Branco Krieger” on Snapchat whether he had ever visited North America. He states in his affidavit:

Mr. Krieger immediately told me that he had lived in Canada a few years ago and that a good friend of his was killed in the house where Mr. Krieger was staying. He further advised that, as a result of his good friend being killed in the house where Mr. Krieger was staying, he does not want to come back to Canada or travel to the United States.

When I started to ask him questions about his “good friend” who was “killed in the house where he was staying” and what was the “good friend’s” name etc. he stopped talking to me altogether.

[22] As a result, Mr. Papasotiriou states in his affidavit that he is sure that “Branco Krieger” was in the house the night before the murder and that he killed Alan Lanteigne.

ISSUES AND ANALYSIS

[23] There are two issues to be dealt with here:

1. Should the application be dismissed for non-compliance with the Criminal Proceedings Rules?

2. Does the application have a reasonable prospect of success?

1. Should the application be dismissed for non-compliance with the Criminal Proceedings Rules?

[24] Mr. Goody, for the Crown, argues that I should dismiss the Application out of hand because the materials are so deficient. I agree. The best way to describe the manner in which this Application has unfolded is shambolic. Justice McMahon set out a timeline for the filing of materials. The Applicants failed to follow the timeline. The Applicants failed to file a factum until very late in the day and even then only after the Crown prepared a “response” in anticipation of the argument that would be made.

[25] Rule 33.01(3) of the Criminal Proceedings Rules describes the requirements for an Applicant’s factum:

(3) The applicant’s factum shall consist of the following parts:

(a) Part I, with the caption, “Statement of the Case”, containing a brief but specific summary of the evidence to which the application relates, together with a statement, with reasonable particularity, of the grounds upon which admission or exclusion is made;

(b) Part II, with the caption, “Summary of the Facts”, containing a concise summary of the facts relevant to the issues in the application;

(c) Part III, with the caption, “Issues and Law”, containing a statement of each issue raised, immediately followed by a concise statement of the law and the authorities relating to that issue;

(d) Part IV, with the caption, “Order Requested”, containing a statement of the order that the court will be asked to make;

(e) Schedule A, with the caption, “Authorities to be Cited”, containing a list of the authorities referred to in the factum, together with citations, in the order in which they appear in Part III or in alphabetical order; and

(f) Schedule B, with the caption, “Relevant Legislative Provisions”, containing the text of all relevant statues except any provisions of the Constitution Act, Criminal Code, and Youth Criminal Justice Act

in paragraphs consecutively numbered throughout the factum.

[26] The Applicant’s factum complied with none of these rules. It is bare-bones. Oral argument allows counsel to flesh out the written argument but it has a more important function than that. Oral argument allows a judge to ask questions of counsel so that counsel can deal with the judge’s concerns. The days of judges being a silent receiver of argument have long been gone. Oral argument is a dialogue between the judge and counsel in furtherance of the judge’s duty to reach a reasoned and reasonable result. A proper factum allows a judge to go into court prepared to engage in this dialogue. Without a proper factum the judge will not be prepared. Valuable court time will be wasted. Indeed, everyone’s time will be wasted including that of opposing counsel.

[27] The failure to file a factum meant that the Crown was groping to understand the theory of the defence. It is not uncommon for the defence to argue that the Crown has not been prejudiced by non-compliance with the Rules. Often that is true. Crown counsel often agree. In this case, however, the defence theory as to the identity of the killer has been a moving target. There has already been one alternate suspect application, as noted. This application started as an unknown suspect application. It turned into a known third party suspect application with a different suspect.

[28] Furthermore, Mr. Papasotiriou’s main affidavit is replete with inadmissible hearsay. It relies on the opinion of Mr. Ivezic. It contains his own opinion evidence. It sumamrizes conversations that he allegedly had with “Branco Krieger”. All of the conversations were conducted on Snapchat. Snapchat is a communications app. Conversations and photographs appear momentarily on screen and then disappear. Mr. Papasotiriou made no effort to take screenshots of the conversations. He says that he took a screenshot of one photograph.

[29] Rule 34.03 of the Criminal Proceedings Rules provides a trial judge with very broad authority to dismiss an application for non-compliance. The Rule states:

34.03 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(a) the nature of the applicant’s non-compliance with these rules;

(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

(e) the history of the pre-trial applications and the proceedings;

(f) any notice given to other parties about the issues raised in the pre-trial applications;

(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

(h) any prejudice to any other party in the proceeding;

(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

(j) any explanation advanced for failure to comply with these rules; and,

(k) any other factors the judge considers relevant to his or her determination.

[30] As my colleague Clark J. stated in R. v. Williams, 2013 ONSC 1173 at para. 14: “The rules are designed to promote the fair hearing and just disposition of matters before the court.”

[31] The shambolic, chronically late, and disorganized nature of the Application was best symbolized by the filing of an affidavit on the morning that the Application was to be heard. As a practical matter it is often the practice in this court that where a person is in custody a draft affidavit is provided to the Respondents and a signed version provided on the day of hearing. That is not the reason for the late filing here, because Mr. Papasotiriou is out of custody. Furthermore, the affidavit contained an exhibit that was available when the first affidavit was filed. There was no reason – at least none that was articulated to me – to justify this late filing although I permitted it.

[32] I recognize that by permitting the Applicants to file a second affidavit from Mr. Papasotiriou late and not in accordance with the Rules the Crown incurred actual prejudice. I was concerned that in a case such as this, where the Crown’s case is largely circumstantial (at least against Mr. Papasotiriou) the Court must be alert to the dangers of a wrongful conviction. I was prepared to allow some leeway to the defence. I am also concerned that the Applicants not be prejudiced on a very substantive issue by the fact that counsel has failed to organize the materials properly.

[33] That said, the Applicants did not advantage of the leeway to file a fulsome record that that could assist the Court in coming to a reasoned and reasonable decision. A court may dispense with compliance with the rules where it is in the interests of justice to do so. I do not see how the affidavit or the factum here advanced the interests of justice. Thus, I apply Rule 34.03 and dismiss the Application for non-compliance with the Rules.

2. Does the application have a reasonable prospect of success?

[34] Even if I were prepared to go ahead on the basis of the insufficient materials, the application has no reasonable prospect of success.

Rule 34.02 of the Criminal Proceedings Rules states:

34.02 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.

[35] See: R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.) at para. 31; R. v. Cody, 2017 SCC 31 at para. 38.

[36] Justice Martin set out the principle that the defence may call evidence that someone else committed the crime in R. v. Williams (1985), 1985 CanLII 113 (ON CA), 50 O.R. (2d) 321, 18 C.C.C. (3d) 356 (C.A) at para. 25:

It is beyond question that a person charged with the commission of an offence may adduce evidence tending to show that a third person committed the crime. The disposition of a third person to commit the offence in question is probative and admissible provided that there is other evidence tending to connect the third person with the commission of the offence…

Where the disposition of a third person is sought to be proved by specific acts, those acts must be proved by admissible evidence and may not be proved by hearsay unless the hearsay evidence proffered falls under one of the exceptions to the rule excluding hearsay evidence.

[37] The Supreme Court of Canada recently canvassed the area in R. v. Grant, 2015 SCC 9. In order to call the evidence, there must be a sufficient connection between the third party and the crime. As Karakatsanis J. stated in R. v. Grant, 2015 SCC 9 at para. 24, “evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection”.

[38] The evidence, however, must be relevant and probative. As Justice Martin stated in R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750:

Evidence that a third person had a motive to commit the murder with which the accused is charged, or had made threats against the deceased is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value: see Wigmore on Evidence, ibid., pp. 573-6.

See also: R. v. Grandinetti, 2005 SCC 5 at para. 46.

[39] There must be a sufficient “air of reality” to the connection in order for the judge to put the defence to the jury: Grant at para. 20; Grandinetti at para. 48; R. v. Cinous, 2009 SCC 29.

[40] As I will explain, there is no connection between the third party suspect “Branco Krieger” (if he exists) and the murder of Alan Lanteigne. There is no air of reality to the defense application. At its highest, the evidence (including the inadmissible evidence), would show the following if it were accepted by a jury:

• Mr. Papasotiriou found a person now living in Brazil named “Branco Krieger” through a fetish website and engaged in a conversation with him;
• Mr. Lanteigne had a sexual encounter with a young Brazilian man about a month before the murder;
• Two men and one woman had dinner with Mr. Lanteigne the night before the murder;
• Someone in the Ossington house the night before the murder visited the Diaper Bois website the night before the murder.

[41] Ms. Von Achten strenuously argued that by attempting to exclude exculpatory evidence Crown counsel have failed in their ethical duties. In fact, the burden in an application such as this is on the defence, not the Crown. Furthermore, there is no evidence to support the notion that Crown counsel failed in their ethical duties. That was the upshot of Justice Nordheimer’s decision to dismiss the application to remove Crown counsel. He dismissed that application summarily. Reckless comments about the ethics of counsel, made here in the face of a judicial finding to the contrary, are unacceptable.

[42] I turn now to an analysis of the proposed defence evidence.

There is no admissible evidence that Branco Krieger exists

[43] Mr. Papasotiriou is able to give evidence that he saw a profile under the name “Branco” on Diaper Bois. He is also able to give evidence that he saw a profile on Facebook under the name “Branco Krieger”. I am aware that Mr. Papasotiriou opined in his affidavit (in itself problematic) that “Branco” from Diaper Bois and “Branco Krieger” from Facebook are the same people.

[44] That said, I think it is obvious that evidence that a profile exists on a website (or even two websites) is not evidence that the person posting the profile is the person he or she claims to be. I think I can take judicial notice that the Internet is rife with people creating profiles where they pretend to be other people. I agree with this passage from the Crown’s Response:

For all the Applicants can actually tell the Court, if Mr. Papasotiriou-Lanteigne really did have the internet communication he alleges, he could just as well have been “speaking” to a 15 year old girl in Australia named Sheila, or an overweight 75 year old senior in Germany named Fritz, as to a trim and fit young man in his early 30’s in Brazil named Branco.

The contents of the communications with “Branco Krieger” are inadmissible

[45] Mr. Papasotiriou is also able to give evidence that he had communications with someone identifying himself as “Branco Krieger”. The content of those communications, however, is not admissible for the truth of their contents. They are pure hearsay. There has been no attempt by the defence to admit the communications under the principled exception to the hearsay rule: R. v. Khelowan, 2006 SCC 57. There have been no attempts to preserve the content of the conversations, such as by way of a screenshot. That impacts on the credibility (leaving aside the reliability) of the communications, as I will explain later in these reasons. There are simply no circumstantial guarantees of trustworthiness associated with the communications.

There is no connection between “Branco Krieger” and the murder

[46] For the purposes of this application, however, I am prepared to accept (without deciding) that the text messages of Mr. Lanteigne could meet the tests of necessity and threshold reliability to be admitted for the truth of their contents. On that basis, I am prepared to accept that the defence could call the following evidence:

• Mr. Lanteigne met a Brazilian language student in late January or early February 2011;
• This person went by the name “Branco” on the Diaper Bois website;
• “Branco” and Mr. Lanteigne met through the Diaper Bois website sometime in late January or early February, 2011;
• “Branco” shared a sexual fetish involving diapers with Mr. Lanteigne;
• Mr. Lanteigne and “Branco” had a sexual had a sexual encounter in late January or early February 2011.

[47] Even if I were prepared to accept that the “Branco Krieger” Mr. Papasotiriou claims to have met through Facebook exists and he is the same “Branco” who had a sexual encounter with Mr. Lanteigne, there is no evidence connecting him to the murder. I have seen no forensic evidence, such as a fingerprint or DNA, that “Branco Krieger” was ever at the Ossington house. Even if I accepted that Peter Bailey saw Mr. Lanteigne having dinner with other people at the Ossington house the night before the murder, there is no evidence that any of those people was “Branco Krieger”, or “Branco”, a Brazilian language student. The defence has the records of Mr. Lanteigne’s cell phone. There are no communications on Mr. Lanteigne’s phone that would suggest that he had made arrangements for “Branco Krieger” – or anyone else – to be at his house the night before the murder.

[48] It is important to the defence theory that the torso photograph was uploaded to the Diaper Bois website the night before the murder. It is also important to the defence theory that the torso photo is of “Branco Krieger” and that he uploaded it himself. That would put “Branco Krieger” in the Ossington house the night before the murder. There is, however, no evidence beyond Mr. Papasotiriou’s assertion that that is in fact what happened.

[49] Mr. Papasotiriou makes the assertion that the “torso photo” is of “Branco Krieger” based on a detailed analysis of the two bodies. This is essentially lay opinion evidence of identification based on photographic comparison. Non-expert lay identification evidence based on a videotape is not admissible unless the witness has a prior acquaintance with the person alleged to be in the videotape: R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont.C.A.) at para. 39. Although this case involves a photograph, the same principle applies.

[50] That lack of a connection between “Branco Krieger” and the murder on the face of the material is enough to dispose of the application summarily.

There is no evidence of means, motive, or propensity by “Branco Krieger”

[51] The evidence fails to meet the three possible connections set out by Karakatsanis J. in Grant: the motive, the means, or the propensity to commit the crime. There has been no attempt in the defence material to show that “Branco Krieger” and the means, motive, or propensity to kill Allen Lanteigne, let alone any actual evidence.

[52] There is no evidence in the material that “Branco Krieger” had the means – such as the ability to enter the Ossington house – to carry out the murder. There is also no evidence that “Branco Krieger” had an motive to kill Allen Lanteigne. There is no evidence of any propensity to kill on the part of “Branco Krieger”.

The information in Mr. Papasotiriou’s affidavit has credibility problems

[53] I have doubts about the credibility of the information provided by Mr. Papasotiriou regarding “Branco Krieger” even in the absence of cross-examination. For example, Mr. Papasotiriou indicates that “Branco Krieger” was only able to communicate via Snapchat. Snapchat is an app where the information disappears from the phone shortly after it is received. Why did Mr. Papasotiriou not communicate with him on the Diaper Bois website or Facebook? I note that from the text messages on Mr. Lanteigne’s phone that Mr. Lanteigne apparently communicated with “Branco from Diaper Bois” on the site itself. There is no evidence that Mr. Lanteigne communicated with “Branco” on his cell phone via text message. They appear to have made plans to meet through the Diaper Bois. Mr. Papasotiriou claims that he feigned sexual interest in “Branco” in order to obtain information. Why could he not have communicated through Diaper Bois as well?

[54] Mr. Papasotiriou took a digital photo of a photograph that “Branco Krieger” supposedly sent to him on Snapchat. I find it puzzling that Mr. Papasotiriou did not take also take digital photographs of the conversations that he says he had with “Branco Krieger”.

[55] I also find it puzzling that Mr. Papasotiriou claims that “Branco Krieger” refused to send him photos via electronic mail or WhatsApp. That seems at odds with the notion that the same “Branco Krieger” posted photographs of himself wearing diapers on the Diaper Bois website. It seems far too convenient that Mr. Papasotiriou and “Branco Krieger” only communicated on Snapchat.

[56] Finally, I find it unusual that “Branco Krieger” spontaneously told Mr. Papasotiriou about the murder of his “good friend” in Canada at a house where he stayed. Mr. Papasotiriou had merely asked him about visiting or living in North America. I think it unlikely that anyone actually involved in a murder would be so forthright with a stranger over the Internet about his or her possible involvement.

[57] I am aware that Justice Nordheimer had doubts about Mr. Papasotiriou’s credibility on the application to quash the direct indictment: R. v. Papasotiriou-Lanteigne, 2016 ONSC 6145 at paras. 51-53.

There is credible evidence rebutting the assertion that “Branco Krieger” committed the murder

[58] I am required to take the defence evidence at its highest when applying the “air of reality” test: R. v. Grant, 2015 SCC 9; R. v. Browne, 2017 ONSC 4615 at para. 47. That said, the Crown may introduce evidence rebutting the claim that a third party committed the crime: R. v. Sprackman, 2012 ONCA 905 at para. 122. The Crown’s evidence must, of course, be relevant and admissible.

[59] It would be an artificial exercise to examine the proposed defence evidence without reference to the Crown evidence. I do not need to do so here, however, because this is a preliminary assessment. The defence material on its own fails to show that there is a reasonable prospect of success. For the sake of completeness, however, I will mention at least some of the Crown’s evidence rebutting the assertion that “Branco Krieger” committed the murder.

[60] Cell tower evidence indicates that Mr. Lanteigne’s cell phone remained in the vicinity of the Ossington house the night before the murder. Mr. Lanteigne’s ante-mortem statements to Ms. Masi indicate that he was at home the night before the murder. Cell phone records indicate that they spoke.

[61] Mr. Lanteigne’s next-door neighbour at the Ossington house was Peter Bailey. Mr. Bailey told police that the night before the murder Mr. Lanteigne had dinner with two or three men and a woman. Mr. Bailey lives in the house next to the Ossington house. In his police interview Mr. Bailey indicated that could not be certain of the date that he saw this dinner. He also described the woman as Mr. Lanteigne’s girlfriend. His description of her matches Mr. Lanteigne’s friend Ms. Masi. Ms. Masi says that she was not with Mr. Lanteigne the night before the murder.

[62] At the end of the day, however, this is a preliminary motion to dismiss the third party suspect application. I do not need to examine the Crown’s rebuttal evidence in detail. That is because, as I have noted, there is simply no connection between “Branco Krieger” and the crime: Sprackman, at para. 121.

Conclusion

[63] There is no “air of reality” to the assertion that “Branco Krieger” murdered Alan Lanteigne. Coroza J.’s comments in Browne, supra, at paras. 45-46 apply here:

However, an accused may not simply seek to deflect attention from the evidence against him by pointing the finger at other possible suspects. Rather, a trial judge must balance the right to make full answer and defence with the need to ensure that a trial does not spiral into a "trial within a trial." A confusing "trial within a trial" has the potential to distort the Court's truth-seeking process.

To avoid distorting a trial's truth-seeking process, the Supreme Court of Canada and our Court of Appeal have held that a trial judge should be disinclined to admit alternate suspect evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.

Admitting the evidence of an alternate suspect would simply be confusing and distort the truth-seeking process for the jury in this case.

DISPOSITION

[64] The application to admit evidence of a third party suspect is dismissed summarily.

R.F. Goldstein J.

Released: October 20, 2017

CITATION: R. v. Papasotiriou-Lanteigne, 2017 ONSC 6251

COURT FILE NO.: CR-14-10000717

DATE: 20171020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

Applicants

REASONS FOR JUDGMENT ON ALTERNATE SUSPECT APPLICATION #2

R.F. Goldstein J.