COURT FILE NO.: CR-14-10000717
DATE: 20180529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC
Pamela Santora, Hank Goody, and Anna Tenhouse, for the Crown
Mary Margaret Osadet and Susan Jane Von Achten, for the Applicants
HEARD: October 10 and 11, 2017
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON 11(b) application
[1] On March 2, 2011, Allen Lanteigne came home from work just after 5 pm. Someone was waiting for him in his residence on Ossington Road in Toronto, or came into his residence shortly after Mr. Lanteigne came home. That person – the Crown alleges that it was Mr. Ivezic - bludgeoned Mr. Lenteigne to death. DNA was taken from under Mr. Lenteigne’s fingernails. That DNA, the Crown alleges, belongs to Mr. Ivezic.
[2] Mr. Lenteigne was married to Demetry Papasotiriou. Mr. Papasotiriou was in Greece at the time of the murder. He was later arrested when he came back to Canada to attend to a litigation matter. The Crown theory is that Mr. Papasotiriou gave Mr. Ivezic either the alarm code or a key fob that allowed Mr. Ivezic to gain entry to the Ossington Road house. Mr. P and Mr. Ivezic are jointly charged with the first degree murder of Allen Lanteigne.
[3] The defence argues that the charge should be stayed because it has taken more than 30 months to get to trial: R. v. Jordan, 2016 SCC 27, R. v. Cody, 2017 SCC 31. There are no transitional exceptional circumstances that justify the delay. Furthermore, the defence argues, the delay is solely the fault of the Crown. Even under the old Morin framework this case has simply taken too long to get to trial: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.
[4] The Crown’s position is that the theme in this case has been indifference towards delay by the defence. The defence has taken steps to thwart the advancement of the matter. The case could have been completed prior to the release of the Supreme Court of Canada’s decision in Jordan. Application of the Jordan framework results in net delay exceeding 30 months. The delay however, justified by the complexity of the case. The Crown argues that, in any event, transitional exceptional circumstances should be applied and the application dismissed.
[5] The total amount of delay in this case from the first appearance of Mr. Papasotiriou on November 3, 2012 until the end of the trial estimated at the end of January 2018 will have been five years and two months. That is much too long.
[6] Under the Jordan framework, however, the defence delay has totalled some 27 months for Mr. Ivezic and some 22 months for Mr. Papasotiriou. Discrete events total just over a month for Mr. Ivezic and just under three months for Mr. Papasotirou. I agree with the Crown that the Net Delay for Mr. Papasotiriou is about 38 months and for Mr. Ivezic about 33 months. That obviously exceeds the Jordan ceiling. I find, however, that the overall delay is reasonable under the Jordan framework due to the complexity of the case. I also find that the manner in which the defence was conducted added significantly to the complexity.
[7] I also find that even if I am wrong about the application of the Jordan framework, transitional exceptional circumstances exist. The parties relied on the law as it stood before Jordan. In the absence of defence delay, the trial could have been completed prior to the release of Jordan, or shortly after the release of Jordan. Accordingly, for the reasons that follow, the application is dismissed.
BACKGROUND
[8] Mr. Papasotiriou was arrested on November 2, 2012. This trial is scheduled to end on January 20, 2018. That is 62 months and 19 days. Mr. Ivezic was arrested on January 8, 2013 in Athens, Greece. He was returned to Canada on June 7, 2013 pursuant to a Canadian extradition request.
[9] I will not refer to all of the appearances leading up to this trial. Instead, I will comment on some of the key events on key dates:
2011
- March 2: Allan Lanteigne murdered.
2012
October 31: Mr. Papasotiriou arrives in Toronto from Greece.
November 2: Mr. Papasotiriou arrested in Toronto for the murder of Allan Lanteigne.
November 3: Mr. Papasotiriou’s first appearance in the Ontario Court of Justice.
November 16: Set date. Further appearances up to June 17, 2013, Mr. Papasotiriou makes 12 video set date appearances and two set date appearances in person.
2013
January 8: Mr. Ivezic arrested in Athens, Greece.
February 1: Extradition package transmitted from Canada to Greece.
April 22: Greek Minister of Justice orders that Mr. Ivezic be extradited to Canada.
June 7: Toronto Police officers take custody of Mr. Ivezic in Greece and transport him to Toronto.
June 8: Mr. Ivezic’s first appearance in the Ontario Court of Justice.
June 27: Joint pretrial.
August 21: A preliminary inquiry date of March 31, 2014 is set for six weeks.
Between October 15, 2013 and March 31, 2014 there are further appearances and set dates.
2014
March 31: Preliminary inquiry commences before Nakatsuru J. (as he then was) and continues until June 19, 2014.
September 11: Nakatsuru J. releases his decision on the preliminary inquiry. He commits Mr. Ivezic for trial on first degree murder. He discharges Mr. Papasotiriou.
October 28: Ms. Von Achten, who acted for Mr. Ivezic, fails to appear for a judicial pre-trial. Ms. Von Achten had insisted on setting the judicial pre-trial notwithstanding that the lead counsel, Mr. Goody, was to be on vacation.
October 29: First appearance in Superior Court for Mr. Ivezic. Ms. Von Achten does not appear to explain her failure to appear at the judicial pre-trial the day before.
October 30: Indictment preferred by Deputy Attorney General against Mr. Papasotiriou is placed before the court.
November 17: Mr. Ivezic unable to appear as he is in hospital.
December 19: Ms. Von Achten fails to appear for a judicial pre-trial. Justice McMahon sets a new date of February 20, 2015 for a judicial pre-trial.
2015
February 20: Ms. Von Achten does not appear for the judicial pre-trial ordered by Justice McMahon. She also fails to file a judicial pre-trial form as required by the Criminal Proceedings Rules.
March 3: Ms. Von Achten appears and indicates that due to medical issues she is not available for a judicial pre-trial until April 29.
April 29: A judicial pre-trial is held. A trial date is set for April 2016 for motions and September 12, 2016 for a three-month jury trial. The first trial date offered was January 2016 but Ms. Von Achten was unavailable. Mr. Papasotiriou indicates that he is trying to retain Mr. Lockyer for the trial. A further judicial pre-trial is scheduled for June 30. Mr. Lockyer had acted for Mr. Papasotiriou at the preliminary inquiry. He was retained to conduct judicial pre-trials. He was not retained for trial. Mr. Papasotiriou indicates that he is not in a position to set a trial date.
June 30: The judicial pre-trial is not held. Mr. Ivezic indicates that he wishes to discharge Ms. Von Achten, who is not present.
July 9: Justice McMahon removes Ms. Von Achten from the record as Mr. Ivezic’s counsel when she does not appear.
July 29: Justice Nordheimer begins presiding. Mr. Ivezic appears alone. He is unrepresented. He alleges that the police, the Crown, and the Centre of Forensic Sciences have tampered with evidence and framed him. He makes a series of disclosure requests.
July 29, 2015 - July 7, 2016: Justice Nordheimer presides over 33 appearances where issues of disclosure, retainer, quashing the preferred indictment, and third party records are discussed. Mr. Papasotiriou has still not retained Mr. Locker, or anybody else. Mr. Ivezic is also still unrepresented throughout this time.
2016
July 7: Mr. Papasotiriou indicates that he will be seeking an adjournment of the September 12 trial date. He states that he is not financial ready to retain Mr. Lockyer. Ms. Von Achten also appears and indicates that she is in the process of being retained by Mr. Ivezic. Notwithstanding Ms. Von Achten’s position, Mr. Ivezic indicates that he wants to get on with his trial.
July 8: the Supreme Court of Canada releases R. v. Jordan, 2016 SCC 27.
July 14: No counsel are present but Mr. Papasotiriou reiterates that he will be requesting an adjournment in order to retain Mr. Lockyer. Mr. Ivezic indicates that he will not consent to a lengthy adjournment unless he is granted bail.
August 9: Mr. Papasotiriou files an adjournment application. Mr. Ivezic reiterates that he will not consent to the adjournment unless he receives bail. Justice Nordheimer vacates the September 12 trial date.
August 31: Ms. Von Achten formally goes on the record as counsel for Ivezic.
October 5: Justice Clark hears an application for bail from Mr. Ivezic. He dismisses the application on October 11.
November 9: A new trial is set for September 11, 2017. Mr. Papasotiriou indicates that he will have Mr. Lockyer retained by the end of May, 2017.
2017
January 4: Disclosure is discussed before Justice Nordheimer. The Crown also raises the issue of a conflict of interest between Ms. Von Achten and Mr. Papasotiriou.
January 19 to September 11, 2017: There are 13 further appearances before Justice Nordheimer. Those appearances deal with conflicts, the direct indictment issue, and disclosure. There are 10 appearances between February 13 and July 26. Those appearances include speaking to the matter after judicial pre-trials; scheduling; and bail.
September 11: second trial date. Trial does not immediately commence.
September 15: Justice Nordheimer appointed to the Court of Appeal; I am appointed trial judge shortly after that.
October 10 and 11: The application to dismiss the charges for delay is heard by me. I dismiss the application with reasons to follow.
2018
- January 20: anticipated end of trial if started on September 11, 2017, as scheduled.
ISSUES
[10] The Court of Appeal summarized the Jordan framework in R. v. Coulter, 2016 ONCA 704 at paras. 34-40:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).\
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
[11] The framework applies to this case, as it was already in the system prior to Jordan: Coulter, para. 96. However, since this case was in the system prior to Jordan I must determine whether transitional exceptional circumstances apply.
[12] I must therefore determine the following issues:
(a) What is the total delay?
(b) What is the defence delay?
(c) What is the net delay?
(d) What is the remaining delay?
(e) Is this a complex case?
(f) Do transitional exceptional circumstances exist?
(a) What is the total delay?
[13] There is no question that this case breaches the Jordan 30-month time limit for cases tried in the Superior Court.
[14] The Crown agrees that the delay begins from the swearing of the information on November 2, 2012. Total delay until the original scheduled end of the trial on January 20, 2018 is 62 months and 19 days. That applies to both accused, although Mr. Ivezic was in Greece at the time and was extradited to Canada. The right to a trial within a reasonable time is an individual right. The delay for each accused must be calculated separately, although the analysis obviously overlaps. The actions of one accused obviously affect the other.
(b) What is the defence delay?
[15] I allocate defence delay of 22 ½ months to Mr. Papasotiriou:
Two months to retain counsel in the Ontario Court of Justice;
The adjournment from May 20, 2016 until the original end of trial on January 19, 2018. The delay for that adjournment is 20 ½ months or one year, eight months, and two weeks.
[16] I allocate defence delay of 22 months to Mr. Ivezic:
Two months and one week between the laying of the information and his arrest by Greek authorities;
A one-week adjournment for the preliminary inquiry.
The adjournment from May 20, 2016 until the original end of trial on January 19, 2018. The delay for that adjournment is 20 ½ months or one year, eight months, and two weeks.
Defence Delay in the Ontario Court of Justice
[17] I agree with Crown counsel that there is only one period of defence delay of two months attributable to Mr. Papasotiriou. Mr. Papasotiriou required two months from October 15 to December 11, 20113 when he did not have counsel retained for the purposes of the preliminary inquiry.
[18] I agree with the Crown that the delay in the Ontario Court of Justice from the laying of the information until Mr. Ivezic’s arrest in Greece must be considered defence delay attributable to Mr. Ivezic. Mr. Papasotiriou was arrested on November 2, 2012. Mr. Ivezic was aware that he was wanted for the murder. He took no steps to surrender himself to Canadian authorities. The Canadian government was required to extradite him. In making this allocation I do not suggest that Mr. Ivezic was required to sacrifice any procedural rights that he may have had in Greece. He was entitled to avail himself of all measures, just as he would have been in this country; but he cannot reasonably claim that this delay of two months and one week accrues to the Crown, which had no control over him. It was his own choice to remain in Greece.
[19] I also agree that one week of delay must be attributable to Mr. Ivezic for the preliminary inquiry. Ms. Von Achten indicated at the close of the preliminary inquiry on June 13, 2014 that she intended to call Mr. Ivezic. She obtained further dates from the trial coordinator. The preliminary inquiry was adjourned until June 19, 2014. Ms. Von Achten did not call Mr. Ivezic on that day. The one-week adjournment was pointless.
First Appearance in the Superior Court to April 29, 2015
[20] On October 29, 2014 Mr. Ivezic made his first appearance in the Superior Court. A judicial pre-trial was scheduled to take place on the previous day, October 29, 2014. Ms. Von Achten did not appear. She did not provide an explanation. Judicial pre-trials were scheduled at her request on December 19, 2014 and February 20, 2015. She did not appear for the December 19, 2014 judicial pre-trial. Justice McMahon ordered her to appear in person for the February 20, 2015 judicial pre-trial. She did not. Eventually Ms. Von Achten appeared on March 3, 2015. She apologized to the court. She indicated that she had medical issues. She was not able to attend for a judicial pre-trial until April 29, 2015, which was when the next judicial pre-trial was scheduled. She was scheduled for a medical procedure on April 8, 2015.
[21] Ms. Von Achten’s failure to appear at several judicial pre-trials had nothing to do with disclosure or scheduling by the Crown. The period from the December 19, 2014 judicial pretrial until the April 29, 2015 pretrial therefore constitutes defence delay for Mr. Ivezic except for the period from April 8 until April 29. I classify that as a discrete event due to Ms. Von Achten’s medical procedure. That is generous. If she had appeared as scheduled for any of the other judicial pre-trials that period of time may not have counted either as a discrete event or as defence delay.
April 29, 2015 to the 2016 Adjournment Request
[22] The most important period of delay for both accused is the time from the end of May 2016 until the scheduled end of trial on January 19, 2018. That period constitutes one year, 8 months, and two weeks. In my view, the defence is responsible for all delay from at least the end of May 2016 and certainly from September 12, 2016.
[23] On April 29, 2015 the parties appeared before Justice McMahon. A judicial pre-trial was held on the record. Ms. Von Achten appeared for Mr. Ivezic. Mr. Papasotiriou appeared on his own behalf. Mr. Papasotiriou indicated that he intended to retain Mr. Lockyer for trial. He had not yet done so. Mr. Papasotiriou had stated that he intended to retain Mr. Lockyer on several previous occasions. A trial date was set. Motions were scheduled for 3-4 weeks commencing on April 4, 2016. The trial itself was scheduled to commence on September 12, 2016. The first date available to the Court and the Crown was January 2016. Ms. Von Achten, however, was not available until April and then September. I agree with the Crown that had the trial commenced in January 2016 it could have been completed, including the pre-trial motions, by the end of May 2016.
[24] The Crown’s position is that all delay from the end of May 2016 is defence delay. Ms. Von Achten’s availability precluded an earlier date. I agree. The Crown and the Court were in a position to set a trial date from January 2016. The delay must accrue to Mr. Ivezic. As Moldaver, Karakatsanis, and Brown JJ. noted for the majority of the Court in Jordan, supra, at para. 64:
As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.
[25] Delay by one accused is not attributed to other accused under the Jordan framework: R. v. Gopie, 2017 ONCA 728 at para. 128. Nonetheless, this time period still constitutes defence delay for Mr. Papasotiriou. He was reluctant to set a trial date as he had not yet retained counsel. He did agree to setting the April 2016 trial date. He did not press for the January date. This was because he indicated that he still intended to retain Mr. Lockyer. Mr. Papasotiriou said that on numerous occasions both before and after the trial date was set. Indeed, he was queried as to whether he would be able to complete the retainer so that Mr. Locker could act for him at trial. He indicated that he anticipated that he would. He did not until the very last moment, when he retained Mr. Gross-Stein from Mr. Lockyer’s office.
[26] Mr. Papasotiriou’s actions must also be seen in light of his subsequent request for an adjournment. He sought an adjournment of the September 2016 trial date because he was unable to retain Mr. Lockyer after all. I have no hesitation in finding that Mr. Papasotiriou never intended to retain Mr. Lockyer or anyone else for trial once he obtained bail. His actions demonstrate that he always intended to avoid going to trial. He only retained counsel at the very last moment when it was made clear to him that he was going to trial with or without counsel.
The 2016 Adjournment Request
[27] Even if the defence delay dates from September 2016 rather than May 2016, there is no question that all the delay following must be defence delay. That is because the September 2016 trial date was adjourned at defence request.
[28] The 2016 adjournment request evolved over multiple appearances. On July 7, 2016 Ms. Von Achten appeared for Mr. Ivezic. Mr. Papasotiriou appeared on his own behalf. He had not yet retained Mr. Lockyer for trial. Justice Nordheimer, who was presiding, indicated that he was running out of time to retain counsel for a September trial date. Mr. Papasotiriou indicated that he would be seeking an adjournment as he was not in a position to retain Mr. Lockyer or anyone.
[29] Ms. Von Achten had been discharged by Mr. Ivezic in July 2015 after she failed to appear on a series of judicial pre-trials. Justice McMahon removed her from the record on July 9, 2015. On July 7, 2016, Ms. Von Achten appeared again for Mr. Ivezic and indicated that she was not yet retained, but expected to be. She stated:
I on behalf of Mr. Ivezic will be bringing a bail hearing in August and this matter is not yet ready for trial by reason of missing disclosure. I won’t get into that, Your Honour. Mr. Ivezic will continue as I’m not fully retained with his disclosure application, and it may be that I assist at some time when the retainer is formalized. But in any event, I myself would need an adjournment, the same as Mr. Lockyer but in any event, I would be negligent in my view to commence a three-month murder trial in September because of the immense preparation that needs to be done. However, I am extremely familiar with the case against Mr. Ivezic because I was his counsel from day one, and I completed the preliminary inquiry for him. So he’s at an advantage in that situation in that it’s not somebody starting from afresh. So having advised Your Honour of this fact, may I seek your direction as to how you would like me to proceed with respect to the setting of dates.
[30] Mr. Ivezic then expressed a view that was somewhat contrary to Ms. Von Achten. He indicated that he wanted the case dealt with sooner rather than later. Ms. Von Achten then noted that Mr. Lockyer (as far as she was aware) was not available until September 2017. She was not available until July 2017.
[31] On July 14, 2016 there was another appearance. Mr. Papasotiriou, on his own behalf, indicated that he intended to retain Mr. Lockyer but he had not yet come up with the funds for the retainer. In any event, he indicated that he would need an adjournment and would be bringing a formal application. Mr. Ivezic, who was in custody, indicated that he also wanted to be represented, but was not prepared to spend another year in custody. As a result, he would only agree to the adjournment if he received bail. Justice Nordheimer, who was presiding again, indicated that a formal application as necessary.
[32] On July 27, 2016 there was another appearance. Justice Nordheimer again presided. Mr. Papasotiriou, again on his own behalf, indicated that he would be filing an adjournment application but had not yet done so. Mr. Ivezic had not yet brought his bail application. He also had not yet retained Ms. Von Achten. He indicated that he had been unable to do so while in custody. Ms. Von Achten had missed at least one appointment with him at the jail. He again reiterated that he would not agree to an adjournment unless he received bail.
[33] Justice Nordheimer then pointed out to Mr. Ivezic:
… I am compelled to say that to some degree that position is inconsistent with the fact that you haven’t brought a bail application. You can’t, on the one hand, say you’re insisting on a September 12th trial date once you get bail, but then to not bring a bail application in a timely fashion so that the September 12th trial date can or cannot be met.
[34] On August 9, 2016 Mr. Papasotiriou, acting on his own behalf, brought an application for adjournment of the trial. Mr. Ivezic indicated that he had not yet spoken to Ms. Von Achten. Mr. Papasotiriou indicated that Ms. Von Achten had communicated to him that she would be seeking an adjournment of the trial. Ms. Tenhouse, for the Crown, also indicated that Ms. Von Achten had informed her that she would be seeking an adjournment but was not yet retained. Mr. Ivezic indicated that he had not yet fully retained Ms. Von Achten, but that he wanted to proceed with his trial in September, represented or not. He also indicated that he wanted bail, although no application had been brought. Justice Nordheimer indicated that he would vacate the September 2016 trial date.
[35] In my view, Mr. Papasotiriou’s adjournment clearly generated defence delay. The adjournment request was unequivocal. Mr. Ivezic, in my view, had an inconsistent position but ultimately it was his adjournment request as well. He wanted Ms. Von Achten to represented him, as he did eventually retain her.
[36] One of the key problems in determining whether Mr. Ivezic was responsible for the delay was the fact that Ms. Von Achten appeared to communicate to everyone except her own client. She apparently told Crown counsel, Mr. Lockyer, and Mr. Papasotiriou that she would be requesting an adjournment until September 2017. She sent that message to the Court through the other participants. She did not appear herself, however. She also did not tell her own client. Her actions caused enormous confusion to everyone and, no doubt, stress for her client.
[37] I ultimately conclude that Mr. Ivezic wanted the adjournment as well. The following exchange between Mr. Ivezic and Justice Nordheimer is illustrative:
Mr. Ivezic: Well, your honour, we had a trial scheduled a year and a half ago. I’m ready to go to trial in September.
The Court: I know you are and that you have…
Mr. Ivezic: Okay.
The Court: You have, but you also indicated to me, (a) you wanted counsel; (b) that you would accept an adjournment for the purposes of getting counsel. You are the co-accused who wants counsel. And your co-accused isn’t available until at least May.
Mr. Ivezic: I understand all these things, Your Honour, and I appreciate all these things, but at the same time I’m the only one that’s incarcerated…
[38] Mr. Ivezic’s position that he wanted to go to trial was obviously inconsistent with the position that he and Ms. Von Achten had earlier taken that they could not go to trial because failure of the Crown to make full disclosure.
[39] Furthermore, the two men are jointly charged with the same murder. Ordinary rules relating to trial economy and joint criminal liability mean that it is appropriate to try them together. This norm – that accused persons will be tried jointly for the same crime – is sometimes in tension with the right to a trial within a reasonable time. In R. v. Manasseri, 2016 ONCA 703, Watt J.A. commented in the problem at para. 323:
Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused's right to tried within a reasonable time has been reached: R. v. Vassell, 2016 SCC 26, at para. 4. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7. Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10.
[40] As Watt J.A. noted in another section of his reasons, Vassell was decided prior to Jordan. It is clearly still good law even in light of Jordan. On that point, see, as well, Gopie, supra, at paras. 131-33. In my view, however, the Vassell issue did not crystallize here. That is because Mr. Papasotiriou did not hold Mr. Iverzic hostage to his adjournment request. Mr. Ivezic’s position was ambiguous, at best. He wanted to get on with his trial, but he also wanted Ms. Von Achten to represent him. She, however, was not available, having been removed from the record on an earlier occasion at Mr. Ivezic’s request. Mr. Papasotiriou, as I have mentioned, intended to avoid going to trial for as long as possible.
[41] I therefore find that both accused persons wanted the September 2016 adjournment. The delay following is defence delay.
(c) What is the net delay?
[42] As mentioned, the total delay from the laying of the information on November 2, 2012 until the anticipated completion of the trial on January 19, 2018 is 62 months and 19 days (or 62 months and three weeks for ease of calculation).
[43] For Mr. Papasotiriou the defence delay amounts to 22 months and 2 weeks. His net delay is, therefore, 40 months and one week.
[44] For Mr. Ivezic the defence delay amounts to 22 months. His net delay is, therefore, 40 months and 3 weeks.
(d) What is the remaining delay?
[45] In order to calculate the remaining delay, discrete events and exceptional circumstances must be subtracted: Coulter, supra, at para. 38. Exceptional circumstances lie outside the Crown’s control or cannot be remedied by the Crown: Jordan, supra, para. 69. Discrete events constitute unforeseeable events that sometimes arise in the course of a trial: Jordan, supra, at paras. 71-73.
[46] Mr. Ivezic’s five months in Greece awaiting extradition is an exceptional circumstance. Mr. Ivezic was arrested on a provisional arrest warrant in Greece on January 8, 2013. The extradition package was sent from the Department of Justice to the Greek authorities on February 1, 2013. Considering that the materials had to be translated into French (the language of the extradition treaty) and that the materials undoubtedly had to go through the usual departmental approvals, three weeks to transmit the materials is quite speedy. The Greek authorities themselves approved the extradition on April 22, 2013. Toronto Police officers took custody of Mr. Ivezic on June 8, 2013 and transported him to Canada. Exceptional circumstances can arise from an extradition proceeding, as the Court noted at para. 81 of Jordan, supra.
[47] Three weeks for Ms. Von Achten’s medical procedure constitutes a discrete event: Coulter, supra, at para. 49. As I have mentioned, however, this event could also constitute defence delay under these circumstances. Thus, five months and three weeks for exceptional circumstances or discrete events are attributable to Mr. Ivezic. The remaining delay allocated to Mr. Ivezic amounts to 34 months and two weeks.
[48] Mr. Papasotiriou was discharged at the end of the preliminary inquiry on September 11, 2014. The Deputy Attorney General preferred an indictment on October 29, 2014. That period constitutes a time where Mr. Papasotiriou was not “charged with an offence” pursuant to s. 11(b). The period of time is just under one month and three weeks. Although it is not a discrete event as classified by the Supreme Court in Jordan, I will call it that simply for the purposes of ease of calculation when dealing with net delay. When this 1 month and 3 weeks is subtracted his remaining delay is 38 months and two weeks.
[49] Since the remaining delay for each accused man exceeds the Jordan ceiling of 30 months, it is presumptively unreasonable: Jordan, supra, paras. 68, 81. I must therefore determine whether this case is particularly complex. If a case is particularly complex that constitutes exceptional circumstances: Jordan, supra, para. 77; Coulter, supra, para. 39. The delay is reasonable where exceptional circumstances exist.
[50] I turn now to the question of complexity.
(e) Is this a complex case?
[51] Ms. Osadet argues that this case is not particularly complex. She argues that when it is looked at from a high perspective, it is not complicated. For Mr. Izevic, she argues, the case turns on a tiny amount of DNA found under the fingernails of the right hand of the deceased. The Crown’s theory is that this puts him at the scene of the crime at the time of the murder. There is some other circumstantial evidence pointing to him, such as his attempts to assist Mr. Papasotiriou with collecting death benefits. The DNA, however, is the bedrock of the Crown’s case. The case against Mr. Papasotiriou is entirely circumstantial – and, she argues, straightforward: the Crown theory is that he had a relationship with Mr. Ivezic, provided the information required for Mr. Ivezic to enter the home and carry out the murder, and arranged to have Mr. Lanteigne there so that Mr. Ivezic could kill him.
[52] I respectfully disagree with Ms. Osadet. This case, while certainly not at the high end of complexity, certainly has complex elements. The question of complexity is not binary. There are degrees of complexity. There are elements of this case that add complexity to what is otherwise a commonplace murder case allegedly involving the killing of an ex-spouse for money. In particular there are two elements: the first involves the nature of the case itself. The second involves the nature of the actions taken by the defence.
The Nature of the Case
[53] This was a first-degree murder case where the police discovered a bludgeoned body in a locked house. The police recovered no fingerprints or DNA at the scene. There was foreign DNA under the fingernails of the victim but no hits from the DNA database. There were no eyewitnesses. The police did not find a murder weapon. There was no sign of robbery or forcible entry. It was a “whodunit”. There was no immediately obvious suspect at the time. Domestic homicides are certainly common but the victim’s spouse had the ultimate alibi – he was in another country at the time of the murder. Thus, the investigation was complex – it involved DNA analysis, the painstaking gathering of evidence such as emails, the use of cell-phone tower “pinging” evidence, the examination of financial transactions, and interviews of dozens of witnesses.
[54] In Cody, supra, at para. 64, the Court noted:
Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time" (Jordan, at para. 77 (emphasis deleted)). When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).
[55] It is true that the majority of the Court in Jordan observed that a typical murder case is not ordinarily sufficiently complex so as to constitute exceptional circumstances. The full quote, however, is important (para. 79):
A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.
[56] See also: Manasseri, supra, at paras. 311-316.
[57] There are, however, elements that made this case more than ordinarily complex.
[58] To start, there were international aspects of the case. It is to be common ground among counsel that the police needed to wait until Mr. Papasotiriou came back from Greece in order to arrest him. Mr. Papasotiriou is a Greek national. Under Greek law that country will not extradite its own nationals. The Greece/Canada Extradition Treaty, CTS 2016/2, was signed on November 3, 1999 but did not come into force until March 1, 2016. As a result the older treaty between the United Kingdom and Greece applied. This treaty permitted each country to refuse to extradite its own nationals. The Canada-Greece Treaty also incorporates that principle. Mr. Papasotiriou’s location was very complicating – as was Mr. Ivezic’s. The Crown also needed to extradite Mr. Ivezic from Greece.
[59] It is also common ground that there were numerous mutual legal assistance treaty (“MLAT”) requests to various countries. It is not clear to me whether any of the MLAT evidence will be used at trial. That said, even if the MLAT evidence is not presented, the preparation and transmission of MLAT requests is a complicated and time-consuming task.
[60] In addition to the international aspects, there are other elements that add to the complexity. For example, the Crown needed to obtain emails between Mr. Papasotiriou and Mr. Ivezic and Mr. Lanteigne in order to build its circumstantial case. The nature of the alarm, the alarm logs, and the interpretation of the alarm logs from the Ossington house proved to be complicated. It required expert evidence. There are also financial documents that may constitute evidence of motive. The Crown needed to obtain these documents as well as obtain the expertise needed to explain them to the jury. There is also, of course, scientific evidence: the pathology evidence and the DNA evidence. Given the number of police officers, the amount of forensic evidence, and the documentary evidence gathered, disclosure has been voluminous. And, of course, there are the complexities associated with more than one accused person.
[61] In my view the combination all of these aspects of the case add significantly to the complexity. The disclosure is voluminous. There are several expert witnesses. The Crown will be required to build a circumstantial case using disparate evidence from many sources. Ms. Von Achten herself, who acted for Mr. Ivezic at the preliminary inquiry, described the case as requiring a “massive” amount of preparation. I find that this is a complex case simply by its nature.
The Actions Of The Defence
[62] A significant amount of complexity has been added due, in large measure, to the unwarranted actions of Ms. Von Achten. In particular, needless and frivolous applications and allegations have been brought. This is a serious case that was dealt with at the pre-trial stage in a most unserious manner by Ms. Von Achten. The needless and frivolous allegations and applications created complexity and added to the resources required by the Crown and the Court. The analysis of complexity is not limited to consideration of the presentation of the evidence at trial. It must be considered more broadly, over the course of the entire proceeding: R. v. Picard, 2017 ONCA 692 at paras. 53-58. This application and other defence applications provide examples. It is important to understand that Ms. Von Achten acted for both Mr. Ivezic and Mr. Papasotiriou on these applications.
[63] I also agree with Crown counsel that this case has taken on added complexity due to the unwarranted actions of Mr. Ivezic, at least to some degree.
[64] The core of the defence position on this application as set out in the application record and the factum is that the Crown is solely responsible for all delay. The defence argues that the prosecution in its largest sense (which includes Crown counsel, the police, and the Centre for Forensic Sciences) has fabricated evidence, suppressed disclosure, and presented a theory of the case that they know to be false. Ms. Von Achten (although not Ms. Osadet, who argued this 11(b) application) and Mr. Ivezic have taken the position that there has been a conspiracy made up of the Centre of Forensic Sciences, the Toronto Police, and the Crown Attorney to frame Mr. Ivezic and suppress exculpatory evidence. Mr. Ivezic, during the time he was unrepresented, argued loudly and vociferously for the disclosure and re-disclosure of already disclosed materials. He repeatedly took the position that any failure of the Crown to make disclosure was based on a deliberate suppression of evidence. Both Mr. Ivezic and Ms. Von Achten simply refused to accept any amount of disclosure or any explanation of documents they disputed. Moreover, they pursued these issues even in the face of judicial rulings to the contrary. Mr. Papasotiriou supported these allegations and swore affidavits in support.
[65] Ms. Von Achten, when she was still counsel on the case, brought an application to remove Crown counsel from the record. She also sought $1 million costs. The application was made because Crown counsel supposedly engaged in serious misconduct. In R. v. Papaotiriou-Lanteigne, 2017 ONSC 4620, 2017 ONSC 4620 Justice Nordheimer described the allegations at paras. 7-8:
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:
(a) The Crowns have hidden, suppressed or altered disclosure ab initio.
(b) 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.
(c) The Crowns have misstated, lied, misconstrued, misled the Defence and this Honourable Court in the prosecution of this matter.
(d) 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.
(e) 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.
(f) 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.
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.
[66] Justice Nordheimer did not accept any of these arguments. He found that the defence allegations were supported by speculation and unhappiness with being the subject of a prosecution. He found no actual evidence. He dismissed these allegations in a summary way at paras. 25-26 and 37:
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. However, the allegations are just that -- allegations. The evidence in support of those allegations is difficult to find.
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.
[67] Justice Nordheimer was in the best position to determine whether there was any substance to the allegations. He devoted many court hours to the resolution of Mr. Ivezic’s complaints. He extensively explored the disclosure issues on the record, over literally dozens of court days. After extensive exploration on the record, and the filing of lengthy affidavits, he found no evidence to support this defence theory.
[68] It is also important to note that Justice Nordheimer invoked his jurisdiction to dismiss the application in a summary way under Rule 34.02 of the Criminal Proceedings Rules. He found that there was no reasonable prospect that the application could succeed: R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.); Cody, supra, para. 38.
[69] That ruling, however, did not stop the defence from repeating the allegations in subsequent applications. It was as if Justice Nordheimer made no ruling at all. He released his decision dismissing the application to remove Crown counsel on September 8, 2017. On September 22, 2017 Ms. Von Achten filed a new application to obtain disclosure of Crown emails. The basis of the application was the continued suppression of evidence by the Crown. It was supported by an affidavit of Mr. Papasotiriou. I excerpt some of the allegations set out in the Application:
The police and/or the Crown have knowingly suppressed evidence, in particular the first report made after the search of the desktop “tower computer on the second floor of the Property until 2016. The first report was completed in April 2011…
It was not until 2017 that the mirror image was provided to the Defense, pursuant to a Court order, the compliance of which was resisted by the Crown and the Police for several months…
The Applicants assert that the Police have altered, re-written, deleted, or otherwise interfered with police officer’s notes; CFS reports or other documents or items touching and concerning the investigation of this homicide…
[70] These allegations, of course, were exactly the ones dismissed by Justice Nordheimer as having no basis in the evidence.
[71] Indeed, the tower computer assertion is another example of the defence needlessly and frivolously complicating the proceedings..
[72] The police searched the Ossington house as part of the homicide investigation in 2011. They found a tower computer. Constable Saini, a computer expert, conducted an analysis. The Law Society of Upper Canada became aware of the investigation. Mr. Papasotiriou is a lawyer. The Law Society was concerned that there might have been privileged materials on the tower computer. As a result, the police sealed the tower computer, Detective Saini’s report, and all of the police notes associated with the search of the tower computer. The Law Society appointed Paul Mergler, a criminal lawyer, to review materials on the tower computer in order to determine whether any documents were subject to solicitor-client privilege. The Crown played no role in that process and did not seek any documents. At the time, Ms. Von Achten acted for Mr. Ivezic or Mr. Ivezic acted on his own. The Crown’s position was that it could not simply disclose documents over which there was a potential claim of privilege to Mr. Ivezic or his counsel. Justice Nordheimer made such an order in 2016.
[73] Ms. Von Achten, however, continued argue that the Crown was “suppressing” evidence even though it was the Law Society that made the claim and the Crown that sought the disclosure order. For example, as stated in the Litigation Privilege Notice of Application:
The Defense sought disclosure of the report of Officer Saini, dated April 7, 2011. The Crown refused to provide this report and/or ignored the reasonable disclosure request of the Defense for same. The said Report of Officer Saini was ordered to be disclosed to the Defense by Nordheimer J. in April, 2016…
[74] The allegation that the Crown knowingly suppressed the tower computer material is simply untrue. Given that Ms. Von Achten and Mr. Ivezic were aware of the process for determining whether documents were subject to solicitor-client privilege, it is mystifying why they would pursue this line of inquiry. Mystifying or not, however, dealing with it required Court and Crown resources.
[75] Moreover, it transpired during the trial that Mr. Ivezic had obtained documents from the tower computer. Crown counsel indicated that the prosecution had not seen some of those documents. It is difficult to understand how it is that Mr. Ivezic had access to documents that might have related to an assertion of solicitor-client privilege related to Mr. Papasotiriou’s law practice.
[76] A further example involves disclosure generally. Justice Nordheimer presided on numerous days while Mr. Ivezic and (and occasionally Ms. Von Achten) indicated disclosure that was missing, and Crown counsel responded. I have reviewed these transcripts in detail. Each time Mr. Ivezic was unprepared to accept anything that the Crown provided. His view, almost without exception, has been that any disagreement could only be explained by a deliberate failure on the part of the Crown, the police, or the Centre for Forensic Science (or all all three) to make disclosure, or a deliberate attempt to suppress evidence. Indeed, any failure, as Mr. Ivezic and Ms. Von Achten saw it, was that any individual who indicated that a document did not exist (or had already been disclosed) was part of the conspiracy against him. He made that allegation over and over again against Crown counsel personally, and against others involved in the administration of justice.
[77] My review of the transcripts indicates that it is no exaggeration to say that much of the time that was spent in court on disclosure issues was wasted. It is true that, as Justice Nordheimer noted, disclosure in this case has been far from perfect. That said, there has never been evidence that substantiates a theory of deliberate suppression of evidence by the Crown. This needless and repetitive litigation added enormously to the amount of time, effort, and money spent on this matter. Despite the protestations of Mr. Ivezic, the transcripts reveal that Crown counsel – and others – bent over backwards to accommodate him. The characterization of the delay as due to Crown failures of disclosure has it exactly backwards.
[78] In general, it might be forgivable that Mr. Ivezic sought to pursue this theory. He was in custody and took the position that the prosecution against him was motivated by tunnel vision and malice. He is not legally trained. Many accused persons adopt this point of view. On very rare occasions they are correct. As Justice Nordheimer pointed out, it is understandable that an accused person might not look favourably on police officers and Crown counsel who seek prosecute them. It is less forgivable that Mr. Papasotiriou, who is a lawyer, chose to pursue this theories. Ultimately, however, he is before the court as an accused person, not as a lawyer.
[79] It is unforgiveable, however, that Ms. Von Achten, an experienced criminal defence lawyer, pursued this chimera. She either knew better or should have known better. This was not zealous advocacy or a momentary lapse in the heat of the moment, something that may happen to even the most civil advocates (and judges): R. v. Groia, 2016 ONCA 471 at paras. 127-151.[^1] These comments were unsubstantiated allegations of misconduct against Crown counsel and others the face of judicial rulings to the contrary.
[80] Finally, I mention the third party records application. In 2016, Ms. Von Achten caused subpoenas to be issued to some 12 third parties. Most of these subpoenas dealt with material that had already been disclosed – such as reports from the Centre for Forensic Sciences. It is certainly entirely legitimate for the defence to litigate refusals by the Crown for material where the Crown has taken the position that the material is not Stinchecombe disclosure and the defence disagrees. The defence may then make an application. A judge can then decide based on legal principles. That is not, however, what happened with these third party records applications. After reviewing the transcripts, I am of the view that several of the applications were frivolous. Justice Nordheimer dealt with the application in court on June 22, 2016. The applications were quickly resolved. And yet, Ms. Von Achten filed a new third party records application before me asking for virtually the same material and based on the same evidence. Despite Justice Nordheimer’s ruling, the basis of the application was the defence theory that the prosecution, the police, and the Centre for Forensic Sciences had engaged in a conspiracy against Mr. Ivezic.
[81] Furthermore, Ms. Von Achten needlessly took the step of placing herself in a conflict of interest. It is mystifying why she would have thought it appropriate to act for the co-accused of her client in a civil matter touching on the issues in the prosecution. This step generated complexity and required the Crown to expend time and resources to bring an application to remove her from the record.
[82] I do not raise these issues simply to comment on the behaviour of counsel. Rather, I raise it to show how this approach needlessly complicated proceedings that were already complicated. The approach forced the Court, the Crown, other government institutions, and even organizations like the University of Toronto to expend time, energy, and resources for no intelligible purpose. In my view, this course of conduct multiplied the complexity of the proceeding.
[83] I note that Ms. Osadet did not associate herself with the defence conspiracy theory. She was careful to argue the application on the basis of a breach of the s. 11(b) rights of the applicants. Subsequent counsel also did not associate themselves with that theory.[^2]
[84] At the end of the day an enormous amount of time and resources (of both the Court and the Crown) went into dealing with these unsupported allegations. This is not the usual kind of complexity, but it is hard to see how it made the case simpler and more straightforward.
Conclusion with regard to complexity
[85] I find that this was a complex case, made more complex by the actions of defence counsel. The complexity is sufficient to rebut the presumption of unreasonableness. This case should not be stayed based a violation of s. 11(b) under the Jordan framework.
(f) Do Transitional Exceptional Circumstances Exist?
[86] I must still determine whether transitional exceptional circumstances exist. That is because the charges were laid prior to the Supreme Court’s decision in Jordan. I am required to conduct a Morin analysis.
[87] Where the parties reasonably relied on the law as it stood before Jordan transitional exceptional circumstances apply. The onus is on the Crown to show that exceptional circumstances apply. The Court must take a contextual approach. Prejudice to the accused and the seriousness of the offence play roles in the analysis of transitional cases; they will play a much less prominent role in the future: Coulter, para. 56; Jordan, para. 96. Importantly, the Morin analysis still plays a role, as the Court noted at paragraph 100 of Jordan, supra:
Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.
[88] In my view, when a Morin analysis is undertaken, the combined institutional and Crown delay in both the Superior Court and the Ontario Court of Justice is within the guidelines.
[89] This case could have been completed prior to Jordan, in May 2016, were it not for defence delay. That would have been a total delay (from November 2, 2012 to May 27, 2016) of just over 41 months or a little less than 3 ½ years. I find that this case would not have been stayed at that time for unreasonable delay under the Morin framework, as I will explain.
[90] In Picard, supra, Rouleau J.A. set out the relevant circumstances for determining whether transitional exceptional circumstances justify the delay at paras. 70-71:
A presumptively unreasonable delay can be justified under the transitional exceptional circumstance if it is shown that, on a correct assessment of the law as it previously existed, the time the case has taken is justified and the parties reasonably relied on the previous state of the law: Jordan, at para. 96.
To determine whether a transitional exceptional circumstance justifies a delay above the presumptive ceiling, the court must conduct a contextual assessment of all the circumstances: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. 513 at paras. 320-321. Following the example set in Williamson, relevant circumstances include:
i. the complexity of the case;
ii. the period of delay in excess of the Morin guidelines;
iii. the Crown’s response, if any, to institutional delay;
iv. The defence efforts, if any, to move the case along;
v. prejudice to the accused.
[91] The Morin framework requires to the court to calculate:
the length of the delay;
waiver of time periods;
the reasons for the delay, including
(a) the inherent time requirements of the case,
(b) the actions of the accused,
(c) the actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and,
- prejudice to the accused.
The length of the delay – Morin
[92] There is no question that the length of the delay warrants an inquiry.
Waiver of Time Periods – Morin
[93] As I will deal with in detail below, there has been an extraordinary amount of defence delay in this case: 692 days for Mr. Papasotiriou (or 23 months and 2 days based on a 30-day month).
[94] The delay attributed to Mr. Ivezic is 979 days (or 32 months and 19 days based on a 30-day month). That includes the time that Mr. Ivezic was in custody in Greece, awaiting extradition. Even if that period is treated as neutral, that still leaves a total of 761 days (or 25 months and 11 days) of defence delay.
The reasons for the delay – Morin
[95] The inherent time requirements of this case include the time required for preparation, the time required for the preliminary inquiry, and the time required for trial. Complexity is part of this calculus. More complex trials simply take longer. As I have already analyzed, this is a complex case. The complexity analysis under the Morin framework is different from the complexity analysis under the Jordan framework: Under Jordan, the complexity of the case may rebut the presumption of unreasonable delay if the final delay exceeds the 30-month time limit (in the Superior Court). Under Morin, complexity is a factor in dealing with the inherent time requirements of the case.
[96] This is a complex case for all the reasons that I have already mentioned. This is not a situation where the case starts out complex and becomes simpler, as described in Picard, supra, at para. 62. This case started out with a significant degree of complexity due to the international aspects, the fact that it is a circumstantial case, and the large amount of disclosure. It has remained that way.
[97] I divide the time this way for both Mr. Papasotiriou and Mr. Ivezic:
Nov. 2, 2012 to May 10, 2013 (189 days) – Intake for Mr. Papasotiriou, Defense Waiver for Mr. Ivezic: In my view, this was intake because the Crown was making disclosure, although in a far from perfect manner. Some leeway has to be given to the Crown under the circumstances: this was a first-degree murder involving DNA. Phone and email records had to be obtained. Forensic examination of the burglar alarm had to be conducted. There was extensive disclosure. Additionally, the police had to wait until Mr. Papasotiriou came back to Canada so he could be arrested. It would have been unrealistic for the police to simply have everything tied up in a bow for his return, as it was unknown when, or whether, he would return. The authorities frequently have no control over the timing of an arrest. In my view, 6 ½ months is a realistic intake period. I find that this period of delay is also defence waiver for Mr. Ivezic, for the reasons that I found in my Jordan analysis. Alternatively, it is neutral – the pace of extradition from Greece was obviously out of the hands of the Crown.
May 10, 2013 to June 8, 2013 (29 days) – Crown delay for Mr. Papasotiriou, Defense delay for Mr. Ivezic until he appeared in Court (alternatively, again, that could be neutral). At this point disclosure should have been mostly ready for Mr. Papasotiriou. Further, it was not Mr. Papasotiriou’s delay that he had to wait to be joined up with Mr. Ivezic.
June 8 2013 to June 27, 2013 (19 days) – Crown Delay (both accused): The first joint judicial pre-trial was held after Mr. Ivezic’s return on June 27, 2013. In my view, this period constitutes Crown delay for two reasons: first, disclosure was still not complete; and second, the Crown chose to prosecute Mr. Ivezic and Mr. Papasotiriou together – a rational choice but one for which it remains responsible. That was the time that had to be allocated to join them up for the joint judicial pre-trial.
June 27, 2013 to August 21, 2013 (74 days) – Crown (both accused): Judicial pre-trials continued. Judicial pre-trials are a critical part of the trial process and time must be allocated for them. That said, the Crown continued to make disclosure beyond a reasonable intake period.
August 21, 2013 to March 31, 2014 (223 days) – Institutional and Inherent (both accused): For a complex murder case, I would allocate 60 days as inherent time. That is the amount of time that is required before the parties are ready for trial: R. v. Lahiry, 2011 ONSC 6780. That may be an underestimation, given the complexities of the case, but it is not unrealistic. According, of the 223 days I allocate 60 days to the inherent time requirements of the case and 163 days to institutional delay.
March 31, 2014 to September 11, 2014 (165 days) – Inherent (both accused) and defence delay (6 days for Mr. Ivezic only): This is the time taken from the commencement of the preliminary inquiry until judgment by Nakatsuru J. One could debate whether to call some of this time neutral, or give it some other classification. Neither party, however, classifies it as Crown delay or institutional delay. The only exception are the 6 days set aside for defence evidence by Ms. Von Achten as I described in my Jordan analysis. Thus, the inherent time for Mr. Ivezic is actually 159 days.
September 11, 2014 to October 29, 2014 (48 days) – Intake (Mr. Ivezic). This is the period from judgment to first appearance in the Superior Court. It is obviously an intake period. This period does not form part of the analysis for Mr. Papasotiriou, as he did not face any charges.
October 30, 2014 to November 17, 2014 (19 days) – Crown (Mr. Ivezic) and Intake (Mr. Papasotiriou): The direct indictment was placed before the Court. The proceedings awaited a bail review for Mr. Papasotiriou, which was granted. Mr. Ivezic was put over to marry him up with Mr. Papasotiroiu. In my view this period must be considered Crown delay for Mr. Ivezic as the delay was generated by the direct indictment against Mr. Papasotiriou. This period was intake for Mr. Papasotiriou.
November 17, 2014 to December 19, 2014 (32 days) – Neutral (Mr. Ivezic and Mr. Papasotiriou): Mr. Ivezic was in hospital and a judicial pre-trial scheduled for November 17, 2014 was not held. Although Mr. Papasotiriou did not have counsel at this point, it is unrealistic to point to defence waiver while a co-accused was in the hospital.
December 19, 2014 to February 20, 2015 (63 days) – Defence (Mr. Ivezic) and Institutional (Mr. Papasotiriou): Although the Crown has characterized this time period for Mr. Ivezic as institutional delay, I disagree. Ms. Von Achten did not appear for the judicial pre-trial or even file the required pre-trial form. It is clearly her delay. Mr. Justice McMahon, who was presiding on December 19, 2014, stated:
“… unfortunately this is the third occasion I’ve had where Ms. Von Achten has failed to appear for a judicial pre-trial. It has interfered with the time of counsel, of the Court, and it’s quite unprofessional. There may be a completely legitimate explanation, I hope nothing has befallen Ms. Von Achten, but if we could indicate to her I am directing that she personally attend on February 20th. She also, by January 31st, filed her updated judicial pre-trial form and then we can go on. It’s not fair to her client, who’s in custody. It’s not fair to Mr. Papasotiriou. It’s not fair to the Court or counsel.
[98] Justice McMahon then told Mr. Ivezic:
“… what I was prepared to do today if we’d had a full judicial pre-trial, I would have been glad to set a target trial date long before or as of today. But your lawyer didn’t show up.”
February 20, 2015 to March 3, 2015 (11 days) – Defense (Mr. Ivezic and Mr. Papasotiriou): Ms. Von Achten again failed to appear and again failed to file her judicial pre-trial form. Mr. Papasotiriou had still not retained Mr. Lockyer for trial.
March 3, 2015 to April 29, 2015 (57 days) – Defense (Mr. Ivezic and Mr. Papasotiriou): Ms. Von Achten appeared and apologized. Mr. Papasotiriou remained unrepresented for the purposes of trial although an agent for Mr. Lockyer appeared. Justice McMahon indicated that he would have been prepared to set a trial date either on March 3, 2015 or earlier.
April 29, 2015 – January 5, 2016 (251 days) – Inherent of 60 days and institutional of 191 days (Mr. Ivezic and Mr. Papasotiriou): Motions scheduled for April 2016 and jury trial for September 12, 2016. Again, I find that two months of this time is inherent delay for trial prep: Lahiry, supra. January 5, 2016 is the date that the Crown and Court could have accommodated the trial. Ms. Von Achten was not available and Mr. Lockyer was not retained.
January 5, 2016 to May 5, 2016 (122 days) – Inherent (Mr. Ivezic and Mr. Papasotiriou): This is the amount of time that the trial would have taken had it started on January 5, 2016.
May 5, 2016 – August 9, 2016 (137 days) – Defence (Mr. Ivezic and Mr. Papasotiriou): Crown counsel has characterized this time period as defence delay, on the theory that the trial could have been completed at that point if the trial had started on January 5, 2016. I agree, for the reasons I mentioned under my Jordan analysis. Alternatively, if I am incorrect, this time could be characterized as part of the inherent time requirements of the case. That is because there were multiple appearances before Nordheimer J. to deal with disclosure, third party records, and other issues. Many (although not all) of the issues raised were either frivolous or without merit. Some of the issues involved the Crown re-disclosing the same documents in a different form for the second or third time.
August 9, 2016 – January 19, 2018 (487 days) – Defence (Mr. Ivezic and Mr. Papasotiriou): August 9, 2016 was the day that the prospect of an adjournment of the September 2016 trial date was mooted for the first time (adjournment applications were filed subsequently). As of that date the Crown and the Court were on notice that an adjournment would be sought. That was because Mr. Papasotiriou was still unrepresented, and Ms. Von Achten, who had gone on the record again, was not available. Again, for the reasons mentioned in my Jordan analysis, this period of time constitutes defence delay.
[99] I find that the total delay of 1926 days (64 months and 16 days) is attributable to Mr. Ivezic is as follows:
Intake: 48
Defence: 979
Inherent: 401
Institutional: 354
Neutral: 32
Crown: 112
[100] In the Ontario Court of Justice the combined Crown and institutional delay is 256 days or 8 months and 16 days. This is obviously well within the Morin guidelines of 8-10 months. In the Superior Court the institutional and Crown delay is 210 days or 7 months. That is also within the Morin guidelines of 6-8 months. In any event, the Morin guidelines are not to be treated as a judicial limitation period: R. v. Kovacs-Tartar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161, [2004] O.J. No. 4756 (C.A.).
[101] I find that the total delay of 1878 days (62 months and 18 days based on a 30-day month) attributable to Mr. Papasotiriou is as follows:
Intake: 208 days
Defence: 692 days
Inherent: 407 days
Institutional: 417 days
Neutral: 32 days
Crown: 122 days
[102] In the Ontario Court of Justice the combined Crown and institutional delay is 285 days or 9 months and 15 days. This is within the Morin guidelines of 8-10 months. In the Superior Court the institutional delay (there was no Crown delay) is 191 days or 6 months and 11 days. That is also within the Morin guidelines of 6-8 months.
Prejudice to the accused – Morin
[103] Given that the institutional and Crown delay is within the Morin guidelines there is only a limited need to analyze prejudice. There is no doubt that in a long proceeding there is prejudice to the accused. In this case, Mr. Ivezic has been in custody in Canada since June 2013. When the trial is complete, Mr. Ivezic will have been in custody in Canada almost five years – and over five years when his time in custody in Greece is included. That is significant prejudice. Of course, much of the time he has been in custody has been under circumstances beyond the Crown’s control – the five months in Greece, and the adjournments and non-appearances by his counsel, Ms. Von Achten. The complexity added by the actions of the defence also contributed. Overall, I find that the prejudice, while not insignificant, is not enough to justify a stay of proceedings.
[104] Mr. Papasotiriou was in custody from November 2012 until he was discharged at the preliminary inquiry in September 2014. He was re-arrested when the Crown preferred an indictment in October 2014. He obtained bail less than two months later. He has been on bail ever since. Obviously the prejudice has been considerably less than the prejudice to Mr. Ivezic. Both men speak of the shame and embarrassment of facing such a serious charge. Ultimately, however, I find that the prejudice suffered was as the result of the nature of the charges rather than the length of the delay.
Balancing – Morin
[105] The final step in the Morin analysis is to balance whether the delay is unreasonable having regard to the societal interests protected by s. 11(b) and the societal interest in a trial on the merits. There is no need to balance here because the Morin guidelines were not exceeded.
[106] That said, if a balancing were required I would find that the balance falls on the side of proceeding to trial. As a first-degree murder trial, society’s interest in a trial on the merits is obviously extremely high. The societal interest in bringing murder charges to trial in a timely way is also extremely high, obviously. Furthermore, the Court could have set a trial date as early as December 19, 2014. The prejudice to Mr. Ivezic is high given his time in custody. At the same time, it is not inconsequential that the Crown case against him is based on his DNA found under the fingernails of the right hand of the victim. There was no DNA found under the fingernails of his left hand – which was wearing a glove. Furthermore, much of the complexity and delay in this case arose directly from his actions or the actions of his counsel, Ms. Von Achten. The prejudice to Mr. Papasotirou is less – he has spent much less time in custody – but the case against him is not as strong. In my view, therefore, the balance falls on the side of letting this case proceed to trial for both men.
Conclusion Regarding Transitional Exceptional Circumstances
[107] The final step in the analysis is to determine whether, in all the circumstances, the delay is justified by transitional exceptional circumstances. Having regard to the factors set out in Williamson, supra, the delay is justified. This is a complex case, made more complex by the actions of the former defence counsel. There was no delay in excess of the Morin guidelines. The Crown made efforts to move the case along – for example, by preferring a direct indictment against Mr. Papasotiriou, rather than taking the much longer course of applying for a prerogative remedy.
DISPOSITION
[108] The application is dismissed for both accused.
CODA
[109] After I indicated in court that the application was dismissed, Mr. Papasotiriou discharged Ms. Von Achten. He indicated that he had no confidence in her. I determined, in accordance with the judgment of Justice Nordheimer, that she could not continue to act for Mr. Ivezic. This caused a further delay of the start of the trial.
[110] Ms. Von Achten entered into a solicitor-client relationship with Mr. Papasotiriou shortly after he was discharged at the preliminary inquiry. Crown counsel learned of this relationship in November 2016. Crown counsel then moved to remove Ms. Von Achten as Mr. Ivezic’s solicitor of record. On April 10, 2017 Justice Nordheimer removed her from the record. He made the following observations:
… both accused now wish to jointly retain Ms. von Achten as their counsel for trial. Both accused have separately received independent legal advice regarding this decision.
Both accused are adamant that there is no conflict in their respective positions in terms of their defence of the first degree murder charge. Mr. Ivezic has filed a lengthy affidavit setting out the nature of what he refers to as the "common defence" that he and Mr. Papasotiriou-Lanteigne have in respect of the murder charge. Mr. Papasotiriou-Lanteigne accepts and relies on that affidavit. Further, both accused were cross-examined before me and both maintained that they have a common defence and that there is no conflict between the two. Both accused are also adamant that Ms. von Achten is the only lawyer who they want to represent them on this charge. They point to her extensive involvement in the case to date and the confidence that they have in her ability to represent them fully and effectively.
That said, both accused were compelled to acknowledge that, while they may have a common defence, they do not have the same defence. Both accused also acknowledged the possibility of a conflict arising during the course of the trial (a prospect that both of them view as extremely remote) and that, if such a conflict arose, Ms. von Achten would not be able to continue to act for either of them. While this latter acknowledgement conflicts with the contents of the joint retainer letters, which purported to allow Ms. von Achten to continue to act for one or the other in such a situation (presumably the choice being hers), both accused now acknowledge that that could not happen, as does Ms. von Achten. Both accused also acknowledge that, if Ms. von Achten was required to remove herself as their lawyer, they would be compelled to continue the trial without counsel.
[111] See: R. v. Papasotiriou-Lanteigne, 2017 ONSC 3449 at paras. 10-13.
[112] I then removed Ms. Von Achten from the record. Mr. Papasotiriou indicated that he wished an adjournment so that I could retain Mr. Lockyer. I denied his request. Mr. Papasotiriou had stated over and over again that he would be retaining Mr. Lockyer. He never did.
[113] Mr. Ivezic then immediately retained Marcy Segal. Ms. Segal went on the record and indicated that she would do her best to get up to speed and did not want to delay the trial. She has did so until she was discharged by Mr. Ivezic later in the trial.
[114] Mr. Papasotiriou did retain Mr. Gross-Stein from Mr. Lockyer’s office. At first, Mr. Gross-Stein indicated that he was retained only for the purpose of assisting Mr. Papasotiriou with picking a jury. He was finally retained for trial and went on the record on November 14, 2017, less than a week prior to the scheduled commencement of the jury portion of the trial. He requested a further week to prepare, which I granted. He, and Ms. Segal, also required adjournments from time to time to prepare. Although these were entirely reasonable requests, the delay accrued to the defence.
[115] Mr. Papasotiriou’s action in firing Ms. Von Achten therefore caused delay. Mr. Ivezic’s actions during the trial have also caused significant delays. As a result, the trial (as of the time of the writing of this decision) will not likely finish until sometime in April 2018. I think it is obvious from the record that this final amount of delay is entirely due to the actions of both accused.
[116] It is clear that any extra delay arising from the removal of Ms. Von Achten and later Ms. Segal must accrue solely to the defence. While Mr. Ivezic moved speedily to retain new counsel, it is also clear that he must share the consequences of Mr. Papasotiriou’s decision to fire Ms. Von Achten. Justice Nordheimer made the potential consequences clear to him.
R.F. Goldstein J.
Released: May 29, 2018
COURT FILE NO.: CR-14-10000717
DATE: 20180529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC
REASONS FOR JUDGMENT ON 11 (b) APPLICATION
R.F. Goldstein J.
[^1]: At the time of the writing of this judgment the appeal to the Supreme Court of Canada had been heard but not yet decided.
[^2]: Ms. Osadet, whose name appeared on this application, had only recently been retained to assist the defence. During the argument on the 11(b) application, she was careful not to make unsubstantiated allegations against Crown counsel. I want to make it clear that this judgment should not be taken as any criticism of her. Mr. Lockyer, when counsel at the preliminary inquiry, did not pursue this theory. Ms. Segal (for Mr. Ivezic) and Mr. Gross-Stein (for Mr. Papasotiriou) both went on the record after I dismissed this s. 11(b) motion. Neither counsel pursued Ms. Von Achten’s theory. Nothing I say in this judgment should be taken as any criticism of them, either.