WARNING

The Court directs that the following should be attached to the file:

Orders restricting publication in this proceeding were made under ss. 517 and 539 of the Criminal Code and continue to be in effect. These sections of the Criminal Code provide:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

CITATION: R. v. Papasotiriou and Ivezic, 2017 ONSC 7221

COURT FILE NO.: CR-14-10000717

DATE: 20171206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

DEMITRY PAPASOTIRIOU AND MICHAEL IVEZIC

Respondents

COUNSEL:

Hank Goody, Anna Tenhouse and Pamela Santora, for the Applicant, Crown

Gabriel Gross-Stein for the Respondent, Mr. Papasotiriou

Marcy Segal for the Respondent, Mr. Ivezic

HEARD: November 21, 2017

REASONS FOR JUDGMENT ON ADMISSIBILITY OF ANTE-MORTEM STATEMENTS

GOLDSTEIN J.

[1] Mr. Papasotiriou and Mr. Ivezic are charged with first-degree murder. The Crown alleges that they murdered Allen Lanteigne in his home at 934 Ossington Street in Toronto. The murder was probably committed on March 2, 2011. The police discovered Mr. Lanteigne’s lifeless body lying in a pool of blood the next day. Someone bludgeoned him 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] Mr. Lanteigne and Mr. Papasotiriou were married to each other. Mr. Papasotiriou was living in Greece at the time of the murder. Mr. Ivezic was in Ontario, living in Mississauga with his wife and children. Mr. Papasotiriou and Mr. Ivezic were carrying on an extra-marital affair.

[3] The Crown intends to call ante-mortem statements to demonstrate Mr. Lanteigne’s state of mind. These ante-mortem statements consist of emails, a Facebook thread, and the viva voce evidence of five witnesses. The five witnesses were friends or colleagues of Mr. Lanteigne.

[4] Mr. Gross-Stein, for Mr. Papasotiriou, objects to the introduction of the viva voce evidence, at least in part, and the Facebook thread. He argues that the viva voce evidence fails the test of necessity and in any event cannot be linked to motive.

[5] I initially gave my ruling and indicated that reasons would follow. At the time I stated that the viva voce evidence is admissible as is the Facebook thread (with some exceptions). The Crown should be permitted to call the evidence. The following are my reasons.

BACKGROUND

[6] The Crown theory is that Mr. Ivezic physically carried out the murder. Mr. Papasotiriou was in Greece at the time of the killing. The Crown alleges that Mr. Papasotiriou provided Mr. Ivezic with the means to enter the Ossington home and kill Mr. Lanteigne. The Crown theory is that Mr. Papasotiriou had a motive to murder Mr. Lanteigne, his husband. That motive was financial. Mr. Papasotiriou would have benefitted from Mr. Lanteigne’s death. He and Mr. Lanteigne were each the beneficiary of $2 million life insurance policies. The Crown intends to call evidence that Mr. Lanteigne was supporting Mr. Papasotiriou while Mr. Papasotiriou lived in Greece. Mr. Lanteigne was growing tired of supporting him. He decided to cut Mr. Papasotiriou off financially. That provided the impetus for Mr. Papasotiriou to murder him. The Crown theory, and some of the evidence in support of it, is found in more detail in Alternate Suspect Ruling No. 2: R. v. Papasotiriou and Ivezic, 2017 ONSC 6251.

[7] The Crown’s evidence consists, in part, of emails between Mr. Papasotiriou and Mr. Lanteigne. These emails set out the ups and downs of the relationship. They also set out the financial pressure felt by Mr. Lanteigne and his threats to cut Mr. Papasotiriou off financially. The Crown theorizes that this threat to cut off Mr. Papasotiriou provided the motive to commit murder.

ANALYSIS

[8] Mr. Gross-Stein, for Mr. Papasotiriou, does not object to the introduction of the emails into evidence. He only objects to most of the viva voce statements and the Facebook thread. He does not take issue with the threshold reliability of the viva voce statements. The following issues must therefore be resolved:

(a) Are the viva voce statements necessary?

(b) Are the viva voce statements material?

(c) Do the prejudicial effects of the viva voce statements and the Facebook thread outweigh the probative value?

(a) Are the viva voce statements necessary?

[9] There are two aspects to necessity here: the first is necessity under the principled approach to hearsay. The second is necessity in the sense of needless accumulation of evidence that crosses the line such that it becomes prejudicial.

[10] I respectfully disagree on both points.

[11] Turning to the first point, Mr. Gross-Stein argues that the viva voce statements do not satisfy the principled approach to the hearsay rule. He argues that they fail to meet the test of necessity. The statements set out essentially the same evidence that is found in the emails. If the Crown were to introduce the statements it would, in essence, consist of “piling on”. The viva voce evidence tells the same story that the emails tell. It therefore fails the test.

[12] Despite Mr. Gross-Stein’s compelling submissions, I must respectfully disagree. The viva voce statements are admissible on the basis that they fall into the “state of mind” exception to the hearsay rule. It is also doubtful that they constitute hearsay: R. v. Starr, 2000 SCC 40; R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.). The Crown does not seek to admit the viva voce statements for the truth of the contents but rather to demonstrate the state of mind of Mr. Lanteigne.

[13] The first question that must be asked is whether the statements are in fact hearsay. As Charron J. summed it up in R. v. Khelawon, 2006 SCC 57 at paras. 56-57:

An out of court statement will be hearsay when (1) it is adduced to prove the truth of its contents and (2) there is no opportunity for contemporaneous cross-examination of the declarant… As we have seen, the first identifying feature of hearsay calls for an inquiry into the purpose for which it is adduced only when the evidence is being tendered for its truth will it constitute hearsay.

[14] In R. v. Humaid, supra, the accused was charged with murdering his wife. The Crown theory was that he came from Dubai with the intention of murdering her. He checked into her hotel at some point. The Crown sought to introduce statements made by the deceased wife to a hotel employee. Doherty J.A. noted at paras. 58:

The statements made by Aysar to Ms. Stevenson were admissible. First, I doubt whether the statements were hearsay in the traditional sense of that word. They were offered only to show Aysar’s state of mind at the time she made the statements, that is, her belief that the appellant would be arriving at the hotel later that evening. Aysar’s statements were not offered as evidence that the appellant in fact did arrive at the hotel that evening…

[15] I conclude that the viva voce statements here are not hearsay because the prosecution does not seek to introduce them for the truth of their contents. They prosecution seeks to introduce them for evidence of the state of mind and future intentions of Mr. Lanteigne. The Crown does not need to demonstrate necessity as a threshold for introduction under the principled approach to hearsay. That is because the statements are not being introduced under the principled approach to hearsay.

[16] Even if the viva voce statements here are hearsay, they certainly fall into the “state of mind” exception described in R. v. Starr, supra, at paras. 168-170. Khelawon, supra, which altered parts of Starr, did not deal with this aspect of the case. Indeed, in Khelawon at para. 60 the Court noted that the traditional hearsay exceptions continue to be relevant. Charron J. stated:

Therefore, if the trial judge determines that the evidence falls within one of the traditional common law exceptions, this finding is conclusive and the evidence is ruled admissible, unless, in a rare case, the exception itself is challenged as described in both those decisions.

[17] In Humaid, supra, Doherty J.A. explained at paras. 59-60 that even if the statements of the deceased were hearsay, they fell into a traditional hearsay exception:

Second, assuming as counsel did at trial, that the evidence was hearsay, and prima facie inadmissible, statements evincing the declarant’s state of mind at the time the statements are made are a long-acknowledged exception to the rule excluding hearsay evidence: R. v. Starr, supra, at paras. 168-70; R. v. Smith, supra, at pp. 925-27 S.C.R., pp. 265-66 C.C.C. The “state of mind” exception permits the admission of hearsay evidence demonstrating the declarant’s state of mind, except where those statements are made “under circumstances of suspicion”: R. v. Starr, supra, at para. 168…

Aysar’s statements fell within the recognized “state of mind” exception to the rule excluding hearsay evidence. That exception as formulated in R. v. Starr, supra, is consistent with the requirements of necessity and reliability which underlie the principled approach to the admission of hearsay evidence. Consequently, the statements should have been admitted at trial.

[18] In his Manual of Criminal Evidence at §27.07 Justice Watt explains the rule (I set out excerpts):

A statement of a contemporaneous state of mind or emotion is admissible to prove the declarant’s state of mind, thoughts, emotions, or intentions. The declaration is frequently received as original evidence, hence requires no exception to support its admission. In other instances, it is admitted as an exception to the hearsay rule. If the declarant’s state of mind is in issue, statements of it are admissible to prove it…

The statement is often of the declarant’s intention to do an act, as for example, to go to some place. The evidence is offered to show the declarant’s intention to do an act, as for example, to go to some place. The evidence is offered to show the declarant’s state of mind, and support an inference that the declarant likely acted in accordance with his/her statement.

The declaration may also involve the conduct of another…

[19] Turning to the second necessity point, Mr. Gross-Stein’s necessity argument is not confined to the threshold admission of evidence under the principled approach. He also argues that the accumulation of statements is unnecessary because of the presence of the emails, which tell the same story. Furthermore, the unnecessary repetition of the viva voce statements takes the evidence out of the probative territory and into the prejudicial.

[20] Mr. Gross-Stein relies on R. v. Rhayel, 2015 ONCA 377. The complainant was a sex trade worker. She alleged that the accused, a customer, sexually assaulted her. She stated that she would not have sex with him because he refused to use a condom. She gave a statement to the police right after the incident. She then gave a videotaped statement to the police three days later. That statement was not made under oath. She then testified at the preliminary inquiry. Unfortunately, she died between the preliminary inquiry and the trial. The Crown sought to introduce the preliminary inquiry testimony pursuant to s. 715(1) of the Criminal Code. The defence consented to that. The Crown then sought to introduce the videotaped statement. The trial judge admitted it. He then went on to convict the accused.

[21] On appeal, Epstein J.A., for the court of appeal, found that the videotaped statement did not satisfy the principled approach to the admission of hearsay. She also found that it breached the rule against prior consistent statements. In doing so, Epstein J.A. found that the evidence of the videotaped statement was not necessary because it was already introduced in the form of her preliminary inquiry testimony. She found that it amount simply to the repetition of statements that were already admitted. As a result, the probative value was limited whereas the prejudicial effect was great.

[22] Epstein J.A. cited R. v. Meaney (1996), 1996 CanLII 6635 (NL CA), 111 C.C.C. (3d) 55 (Nfld.C.A.) in her decision. In Meany the complainant was a severely handicapped adult woman. The Crown alleged that the accused, a cab driver, had sexually assaulted her. A psychiatrist described the complainant as “severely mentally retarded”. She did not speak in complete sentences. The Crown’s case rested on statements she made to her caregiver, her brother, and to a doctor about the cab driver. The Crown also sought to introduce statements made to a police officer. During the police interview of the complainant she was unable to reply spontaneously to questions. The caregiver acted, in effect, as an interpreter. The trial judge permitted all of the complainant’s out of court statements to be admitted into evidence.

[23] O’Neill J.A., for the Newfoundland Court of Appeal, found that the trial judge was correct to find that necessity was met, in the sense that the complainant could not testify. The trial judge erred, however, by permitting the Crown to call several witnesses who all testified that the complainant said more or less the same thing. O’Neill J.A. found that the criteria of necessity does not allow repetitive statements to be introduced – repetition has little probative value whereas the prejudice resulting from admission is high. The Court later stated at para. 41:

With respect to necessity it is clear from the evidence that the complainant could not have given evidence and it follows from the principled approach outlined in Khan and Smith that the “criterion of necessity” was satisfied, at least insofar as some of the utterances or statements made by the complainant are concerned. However, as will be discussed later, the criterion of necessity will not operate such as to allow the introduction of evidence which, in itself, may not be necessary because it is merely repetitious of statements already admitted and, for that reason may have little or no probative value, whereas the prejudice to the accused resulting from its admission would be great.

[24] I do not disagree with O’Neill J.A.’s analysis. I do not, however, think that the analysis applies here. Even if I were to accept the argument that the statements are hearsay as urged by Mr. Gross-Stein, they are not repetitive in the inadmissible way described in Rhayel and Meaney. Those cases are distinguishable. In each case, the hearsay statements described the actual gravamen of the criminal conduct. The danger was that the needless repetition of the circumstances of the actual offence would induce the jury (or in Rhayel the trial judge) to believe that the criminal conduct described actually happened. In Rhayel the trial judge was persuaded by the striking similarities between the statements. “Striking similarity” may be useful in weighing the admission of similar fact evidence from different people who are unknown to each other. It has less application to different statements from the same person where the subject matter of the statement is simply the state of mind of the declarant. That said, I do not wish to be taken as saying that the Crown can call an unlimited number of statements to demonstrate state of mind: Candir, supra, at para. 85. I find that the line, wherever it may be, is not crossed in this case.

[25] Of course, the viva voce statements are not admissible simply because they recount something the deceased said. They are admissible because they recount something the deceased said about his relationship with Mr. Papasotiroiu. That, in turn, is relevant because it is part of the circumstantial evidence of motive. Thus, the question of materiality must be dealt with. I turn to that next.

(b) Are the viva voce statements material?

[26] Mr. Gross-Stein also argues that Mr. Lanteigne’s statements to others cannot be linked to Mr. Papasotiriou’s motive (if he had one). That is because none of the others would have communicated Mr. Lanteigne’s thoughts to Mr. Papasotiriou. Thus, this particular evidence of Mr. Lanteigne’s state of mind could have played no role in generating animus or motive by Mr. Papasotiriou towards his spouse. In other words, the viva voce statements are not material.

[27] This argument, so attractive at first blush, must also ultimately fail. The state of mind of Mr. Lanteigne is relevant because it is linked to Mr. Papasotiriou’s potential motive to kill.

[28] The link between the state of mind of the deceased and the motive of the alleged killer was explored in R. v. Candir, 2009 ONCA 915. A husband was charged with the murder of his wife. The Crown sought to introduce statements of the deceased wife. These statements were alleged to be evidence of the deceased wife’s state of mind. They were also alleged to be circumstantial evidence of the husband’s motive to kill. The trial judge admitted 39 of 57 statements. The defence argued that the statements were not material; and even if they were, the prejudicial value outweighed the probative effect. The statements, the defence argued, made the husband look like a cad.

[29] Watt J.A., for the Court of Appeal, noted that evidence will only be received in a criminal trial if it is relevant, material, and admissible. Relevance is a function of the circumstances of the case. It is a relationship between an item of evidence and a proposition of fact a party seeks to prove (or disprove). Admissibility is a matter of law. He defined materiality at para. 49:

Materiality is a legal concept. Materiality defines the status of the proposition a party seeks to establish by the introduction of (relevant) evidence to the case at large. What is material is determined by the governing substantive and procedural law and the allegations contained in the indictment. Evidence is material if what it is offered to prove is in issue according to the governing substantive and procedural law and the allegations contained in the indictment. Evidence is immaterial if what it is offered to prove is not in issue under the governing substantive and procedural law and the allegations contained in the indictment.

[30] Watt J.A. then discussed the relevance and materiality of relationship evidence in domestic homicides. In particular, he stated at paras. 51-52, 55 (I set out excerpts, with the citations omitted):

In a prosecution for a crime of domestic homicide, evidence of the relationship between the principals, the persons charged and deceased, may be relevant and material… Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person’s animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing…

Motive or animus has to do with an accused’s state of mind, not that of the deceased. Yet evidence of the deceased's state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased…

In cases like this, where the prosecutor alleges that the murder charged was motivated by the appellant’s anger in the deceased’s decision to end the relationship, the prosecutor is entitled to adduce evidence to prove the deceased’s contemporaneous mental or emotional state with respect to the accused, such as dislike, hatred or fear of the accused. From the deceased’s state of mind, the trier of fact will be asked to infer and can conclude that the deceased acted in accordance with his or her emotional state and that his or her conduct supplied the accused with his or her own motivation to act…

[31] The Crown argues that Mr. Lanteigne’s state of mind, as expressed in emails and viva voce are material because they are evidence of his state of mind and intention to cut Mr. Papasotiriou off financially. That, in turn, is evidence of motive. Mr. Gross-Stein does not disagree with the principle but argues that there is no evidence that Mr. Lanteigne communicated his state of mind to Mr. Papasotiriou except through the emails, which he does not object to.

[32] Whether or not Mr. Papasotiriou had an animus towards his spouse or a motive to kill him is a question for the jury. The emails themselves tell part of the story. The viva voce statements also tell part of the story. It is true that Mr. Lanteigne’s thoughts and actions were communicated to others. It is certainly speculative to say that Mr. Papasotiriou would have been aware of those communications. It would, however, be open to a jury to find (although they would not be compelled to make that finding) that Mr. Papasotiriou, as a spouse who cohabitated for a substantial period of time with Mr. Lanteigne, would have had a good understanding of Mr. Lanteigne’s thoughts and reactions – in other words, his state of mind. It would also be open to the jury to find that Mr. Lanteigne did communicate his thoughts directly to Mr. Papasotiriou other than by emails. The jury will be able to weigh the fact that Mr. Papasotiriou visited Toronto from November 8, 2010 to December 3, 2010. Mr. Papasotiriou was in Toronto for almost a month not long before the murder, and during the currency of Mr. Lanteigne’s complaints about Mr. Papasotiriou.

[33] In my view, therefore, the viva voce statements of Mr. Lanteigne are material. I turn now to the question of whether the prejudicial effects of the viva voce statements outweigh the prejudicial effects.

(c) Do the prejudicial effects of the statements outweigh the probative value?

[34] Even where evidence is otherwise admissible, a trial judge has a discretion regarding the admission of the evidence. A trial judge may exclude evidence if he or she finds that the prejudicial effect outweighs the probative value: Candir, supra, at para. 35.

[35] As Watt J.A. also points out in Candir, there is also a discretion to exclude evidence that is needlessly cumulative. “How much is too much” is a question that is unique to each trial, of course.

[36] I find that in this case the viva voce statements are not needlessly cumulative. There are only five witnesses and one Facebook thread. The viva voce statements are mostly generalized complaints about money. The viva voce statements do not complain about Mr. Papasotiriou’s infidelity.

[37] There are few gratuitous comments that are evidence of bad character. These few comments can (and will) be excluded from the jury’s consideration.

[38] I also find that the viva voce statements (and the Facebook thread) do not, in and of themselves, deal with the offence itself (which would obviously be impossible) but rather deals with circumstances surrounding the relationship between Mr. Lanteigne and Mr. Papasotiriou. Mr. Lanteigne’s complaints might be seen as evidence of Mr. Papasotirou’s bad character by the jury. They could also be seen as part of the natural tensions about money that often occurs between spouses. The jury will be instructed that the statements are not admissible for the truth of their contents. In any event, to the extent that any of these statements cast Mr. Papasotiriou in a bad light, that can also be dealt with by way of an appropriate instruction to the jury.

RULING

[39] The evidence that the Crown wishes to call is set out in the appendices to the Crown’s Application Record. The viva voce evidence may be called by the Crown as follows:

[40] The evidence of Claudia Amar as set out in Appendix A to the Crown’s Application Record may be admitted in its entirety.

[41] The evidence of Jarvis Belding as set out in Appendix B to the Crown’s Application Record, may be admitted with the exception of the following statement, as I find that the prejudicial effect outweighs the probative value:

• The evidence in paragraph 7 where Mr. Belding indicates that after Mr. Papasotiriou returned to Europe Mr. Lanteigne never referred to him again except as “the asshole”.

[42] The evidence of Grazia Masi as set out in Appendix C to the Crown’s Application Record may be admitted in its entirety.

[43] The evidence of Mark McGugan as set out in Appendix D to the Crown’s Application Record may be admitted in its entirety with the exception of the following statement, as I find that the prejudicial effect outweighs the probative value:

• The evidence in paragraph 10 where Mr. McGugan recounted that Mr. Lanteigne called Mr. Papasotiriou “a prick”. The Crown has not, in any event, sought to lead that evidence.

[44] The evidence of Zeljko Napiljalo as set out in Appendix F to the Crown’s Application Record may be admitted in its entirety with the exception of the following statement, as I find that the prejudicial effect outweighs the probative value:

• The evidence in paragraph 12 that he had never heard Mr. Lanteigne speak negatively about anyone other than Mr. Papasotiriou.

[45] I also find that the Facebook thread between Mr. Lanteigne and Mr. Solis may be admitted in its entirety. In my view, there is no principled reason to distinguish between it and any other written communication where Mr. Lanteigne expresses his state of mind.

Goldstein J.

Released: December 6, 2017

CITATION: R. v. Papasotiriou and Ivezic, 2017 ONSC 7221

COURT FILE NO.: CR-14-10000717

DATE: 20171206

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

DEMITRY PAPASOTIRIOU AND MICHAEL IVEZIC

Respondents

REASONS FOR JUDGMENT ON ADMISSIBILITY OF ANTE-MORTEM STATEMENTS

Goldstein J.

Released: December 6, 2017