COURT FILE NO.: CR-14-10000717
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC
Hank Goody, Anna Tenhouse, and Pamela Santora, for the Crown
Gabriel Gross-Stein, for Mr. Papasotiriou
Michael Ivezic, on his own behalf
HEARD: February 13, 2018
R.F. GOLDSTEIN J.
Ruling re: lifestyle evidence
[1] Mr. Ivezic and Mr. Papasotiriou are charged with the first-degree murder of Allen Lanteigne. Mr. Ivezic seeks to introduce evidence of what he calls the “high risk” lifestyle of Mr. Lanteigne. This evidence, he says, shows that Mr. Lanteigne exposed himself to the risk of violence by this lifestyle. This evidence could, he says, raise a reasonable doubt about his guilt by showing that Mr. Lanteigne could have been murdered by someone he met through a fetish or gay dating website.
[2] At the close of submissions, and after period of reflection, I delivered a short oral ruling dismissing the application. I indicated that full reasons would follow. These are those reasons. Briefly, the probative value of this “lifestyle evidence”, as I will call it, is substantially outweighed by the prejudicial effect.
BACKGROUND:
[3] The Crown alleges that Mr. Ivezic bludgeoned Mr. Lanteigne to death in his home at 934 Ossington Avenue in Toronto on March 2, 2011. Mr. Papasotiriou - who was in Greece at the time- allegedly abetted the murder by arranging for Mr. Lanteigne to be in the home at a time that Mr. Ivezic was lying in wait for him. Mr. Papasotiroiu and Mr. Lanteigne were spouses. Mr. Papasotiriou and Mr. Ivezic were having an intimate relationship. Mr. Lanteigne was supporting Mr. Papasotiriou financially while Mr. Papasotiriou was living in Europe. Mr. Papasotiriou went to Europe in early 2010 and had only returned to Canada for a visit in November and December 2010. The Crown’s theory is that Mr. Papasotiriou’s demands for money became too excessive and Mr. Lanteigne told him that he would be cut off. Mr. Papasotiriou then arranged for Mr. Ivezic to physically carry out the murder, or the two decided to murder Mr. Lanteigne together. Their motive was money. The two of them then sought to collect insurance and other financial benefits. Mr. Lanteigne carried life insurance (as did Mr. Papasotiriou). He also carried group life insurance through his employment. Mr. Papasotiriou was the beneficiary of his insurance policies (as Mr. Lanteigne was the beneficiary of Mr. Papasotiriou’s insurance policy). Mr. Ivezic did much of the legwork in Canada that was required for Mr. Papasotiriou to collect insurance and other benefits. The Crown characterizes the attempts to collect insurance and other benefits as after-the-fact conduct. Mr. Ivezic left Canada some time in 2011 to move to Europe to be with Mr. Papasotiriou.
[4] The Crown theory and the facts are summarized in more detail in my ruling dismissing the second defence alternate suspect application: R. v. Papasotiriou-Lanteigne and Ivezic, 2017 ONSC 6251.
[5] At this point in the trial the Crown has called 29 witnesses. The witness at the time of my ruling was Detective Crampton. Detective Crampton analyzed telephone records, emails, Facebook chats, and travel records. He has presented that analysis to the jury in the form of a PowerPoint presentation. The evidence for the PowerPoint presentation came from a variety of sources. The sources include Allen Lanteigne’s work computer from the University of Toronto and the home computer from 934 Ossington. Mr. Lanteigne and Mr. Papasotiriou shared the home computer prior to Mr. Papasotiriou’s move to Europe. A police computer expert extracted emails, websites, cache, and other evidence from two computers. The police seized some of the travel records from 934 Ossington. The police obtained telephone and VOIP records through production orders. The police also obtained Canada Border Services Agency records.
[6] Detective Crampton is currently in cross-examination. A few words about developments during the trial are also necessary to understand the background. When the trial began, one lawyer, Susan Von Achten, represented both accused men. Justice Nordheimer, who had been presiding over pre-trial motions when he was elevated to the Court of Appeal, permitted this representation with certain conditions: R. v. Papasotiriou-Lanteigne and Ivezic, 2017 ONSC 3449. I was appointed as trial judge after Justice Nordheimer was elevated. I heard more pre-trial motions. After I dismissed those motions, Mr. Papasotiriou indicated that he was dismissing Ms. Von Achten. He indicated that he had lost confidence in her. After some protracted discussion I removed her from the record as counsel for both men. Eventually Mr. Ivezic retained Marcy Segal to represent him. Mr. Papsotiriou retained Gabriel Gross-Stein. A jury was selected. The Crown began to call evidence and did so continuously, although not without some hiccups.
[7] During Detective Crampton’s cross-examination by Ms. Segal Mr. Ivezic indicated to the Court that he had lost confidence in her. He dismissed her. He indicated that he wished to represent himself. He has since done so. He has had input from amicus. He has also had independent legal advice about other issues.
ISSUE AND ANALYSIS:
[8] Mr. Izevic seeks to introduce evidence of what he calls Mr. Lanteigne’s “high-risk lifestyle”. He wishes to do so initially through the cross-examination of Detective Crampton. He wishes to use the photographs and web history analyzed by Detective Crampton. He wishes to have that material identified and introduced to the jury through Dective Crampton.
[9] Mr. Ivezic argues that Mr. Lanteigne had what he calls “a dark side”. He says that Mr. Lanteigne frequented gay dating websites and fetish websites. He alleges that Mr. Lanteigne was highly promiscuous. Mr. Lanteigne, he agrues, brought random men home with him to have sex with. It is one of these men, he says, who could have murdered Mr. Lanteigne. He points to the fact that in the weeks prior to the murder Mr. Lanteigne (or whoever was using his work and home computers) accessed and spent time on various gay dating websites, including fetish websites. These websites included sites where men engaged in a fetish involving diapers and infantilism. There are also photographs indicating that Mr. Lanteigne may have engaged in bondage activities. He says that he can show that Mr. Lanteigne had sex with ten different men in the 60 days prior to his murder. He argues that this evidence is relevant because it shows that someone from Mr. Lanteigne’s “dark side” could have carried out the murder.
[10] Mr. Gross-Stein, supporting Mr. Ivezic, makes a more subtle and focused argument. He argues that the lifestyle evidence is admissible because it shows that Mr. Ivezic did not have an exclusive opportunity to commit the murder. He agrees that Mr. Ivezic needs to be able to show that Mr. Lanteigne slept with many men. This promiscuity was part of Mr. Lanteigne’s dark, secret side. This, he argues, would balance the negative portrait of Mr. Papasotiriou that emerges from the email presentation.
[11] I disagree with all of the defence arguments. I decline to admit the lifestyle evidence. I decline to do so because the prejudicial effect of this evidence substantially outweighs the probative value. The lifestyle evidence is simply not relevant to the identity of the killer. This evidence also has the capacity to distract the triers of fact from the real issue this case, which is whether the Crown has proven the guilt of Mr. Ivezic and/or Mr. Papasotiriou beyond a reasonable doubt. Finally, this evidence is not required to “balance” competing portraits of the deceased and the accused.
[12] In my view, therefore, the issues are these:
(a) Does the prejudicial effect of the lifestyle evidence substantially outweigh the probative value?
(b) Do issues of trial economy militate in favour of or against admitting the evidence?
(c) Is the evidence required to “balance” the competing portraits of the deceased and the accused?
(a) Does the prejudicial effect of the lifestyle evidence substantially outweigh the probative value?
[13] A judge may only exclude defence evidence where the prejudicial effect of the proposed evidence substantially outweighs the probative value: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at para. 43; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 at para. 7.
[14] I have my doubts that there is actually evidence of Mr. Lanteigne’s high-risk lifestyle, as described by Mr. Ivezic. Mr. Ivezic has not provided any anticipated evidence, other than Mr. Lanteigne’s website visits. He asserted in submissions that Mr. Lanteigne had 10 sexual partners in the 60 days prior to the murder. He was unable to point to any specific evidence to support that contention. Certainly there is no foundation in the evidence thus far that Mr. Lanteigne met numerous intimate partners. In my alternate suspect ruling I noted that Mr. Lanteigne appears to have had a sexual encounter with another man about three weeks before the murder. That evidence is not before the jury. In any event, that hardly establishes the promiscuous lifestyle that Mr. Ivezic claims. There is also no evidence, even in a limited way, to suggest that any of Mr. Lanteigne’s recent sexual partners – if he had any – killed him. The police obtained a considerable volume of Mr. Lanteigne’s communications, including his text messages. Mr. Ivezic has this material and has not demonstrated that Mr. Lanteigne was communicating with many partners. That said, he has correctly pointed out (and Detective Crampton has agreed) that the police did not obtain all of Mr. Lanteigne’s emails and communications.
[15] Even if Mr. Lanteigne led a promiscuous and high-risk lifestyle, there is simply no link between his use of gay dating and fetish websites and the possibility that some unknown person murdered him. There is no evidence that fetishes involving either diapers or bondage is more likely to bring a person into contact with violent, murderous individuals.
[16] The proposed evidence is not based on connection – it is based on contingency. It calls for speculation. It asks the jury to find a reasonable doubt based on something that might have happened, the probability of which is low. The Canadian Judicial Council model jury instructions use the following language in explaining reasonable doubt:
Now what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.
[17] Given the lack of logical connection from the evidence, or absence of evidence, I do not see how the proposed evidence would call for anything but speculation. The probative value of this evidence is extremely low, if it has any probative value at all. Taking the defence theory at its highest, Mr. Ivezic intends to show that Mr. Lanteigne left his residence the night before the murder. He further intends to show that he returned the next day after work – where the killer was lying in wait for him. Mr. Lanteigne brought the killer to his house. The killer stayed in the house overnight while Mr. Lanteigne left the residence. Mr. Ivezic says that it can be inferred that Mr. Lanteigne met either the killer, or the person he met after leaving the killer in the house (or both) on a fetish or dating site.
[18] Mr. Ivezic bases his argument that the killer spent the night alone in the house the night before the murder based on two pieces of evidence: first, the alarm evidence shows that the door to the residence was opened the night before the murder but not on the morning of it. In other words, the alarm evidence shows the door was opened and the alarm was armed the night of March 1 - but no activity was recorded on March 2 until the door was opened after working hours. According to Mr. Ivezic, this alarm evidence means that Mr. Lanteigne left the residence- presumably to meet someone from a gay dating or fetish website. The second piece of evidence is computer activity. The night before the murder the computer in the residence was used to access certain fetish websites that Mr. Lanteigne appears to have accessed both from his home and work computers on earlier occasions. Mr. Ivezic argues that photographs of a man in a diaper- not Mr. Lanteigne -were uploaded to the fetish website. This shows, he argues, that another person was in the house the night before, and when combined with the alarm evidence that person could not have been Mr. Lanteigne.
[19] There has been evidence in this trial that tends to refute the defence theory. The Crown has called expert computer evidence. The expert testified that the photographs were not uploaded. They were downloaded from the Internet. They were automatically downloaded into the computer’s cache when someone viewed the photographs on a fetish website. That is the opposite of Mr. Ivezic’s contention. Mr. Ivezic says he has expert evidence suggesting otherwise but he has not presented an expert report or other material. Furthermore, other evidence at this trial is that Mr. Lanteigne went on that particular fetish website from his home computer many times – and showed one of his friends his profile. He also appears to have accessed that particular fetish website from his work computer.
[20] The alarm evidence lends some limited support to Mr. Ivezic’s argument. It is undermined, however, by expert evidence that Mr. Lanteigne could have left the residence on the morning of the murder without recording that the door was opened and closed simply by using the “quick exit” function of the alarm. It is also undermined by the fact that the alarm recorded the same thing on the evening/morning of February 28-March 1 as it did the evening/morning of March 1-2. The alarm recorded the closing and arming of the door late in the evening and no other activity until after working hours the next day. That happened two days in a row. There is no evidence that Mr. Lanteigne went out for the night two nights in a row.
[21] There is also evidence to the contrary. The night before the murder Mr. Lanteigne told his good friend Ms. Masi that he was going to watch a movie at home. I permitted the introduction of that evidence for the limited purpose of showing Mr. Lanteigne’s state of mind and future intentions: R. v. Papasotiriou-Lanteigne and Ivezic, 2017 ONSC 7221.
[22] Mr. Ivezic also points to proposed eyewitness evidence that, he says, demonstrates that other people were in the house the night before the murder. There are real questions about the reliability of that proposed evidence, but that, of course, is for the jury if and when Mr. Ivezic calls it. Ultimately, whether this defence evidence leaves the jury in a state of reasonable doubt is not my decision. That is the jury’s decision, subject to a possible application remove it from consideration as having no air of reality.
[23] That said, when I examine the whole of the evidence I find that the probative value of the “lifestyle” evidence is very low. Mr. Ivezic’s contention that someone other than Mr. Lanteigne was in the residence the night before the murder (and the night before that) verges on speculative. Moreover, the notion that this person (if he exists) was someone Mr. Lanteigne met on a fetish or dating website is unsupported by any evidence – either evidence already called or anticipated evidence. It is only supported by conjecture.
[24] In contrast, the prejudicial effect of the lifestyle evidence substantially outweighs the probative value. Even if Mr. Ivezic were able to establish that Mr. Lanteigne had engaged in what he calls a “high risk” lifestyle, the prejudicial effect of the proposed evidence is enormous. This argument is founded on myths and stereotypes about gay people.
[25] In R. v. Seaboyer, supra the Supreme Court considered the constitutionality of the so-called “rape shield” laws as set out in s. 276 of the Criminal Code. The Court struck down the laws as they stood (later modified and upheld). Nonetheless, the Court noted that the purpose of s. 276 was valid. In particular, s. 276 sought to address the “twin myths” associated with common law evidentiary issues around the crime of rape: first, that a woman was more likely to have consented to sexual activity if she were an “unchaste woman”; and second, that such a woman was more likely to be a liar. These myths had been utterly discredited by 1991, when Seaboyer was decided: para. 23. These myths were probative of nothing. Moreover, as McLachlin J. (as she then was) noted for the majority, they had the potential of distracting the jury.
[26] Section 276 of the Criminal Code does not apply here. Nonetheless, I would apply the same thinking to this case. Mr. Ivezic makes an assertion that is similar to the “twin myths”: that gay men involved with fetishes are dangerously promiscuous. Mr. Ivezic seeks to make a link between the number and quality of Mr. Lanteigne’s partners and the possibility that one of them might have murdered him. There is no foundation at all for this assertion. Furthermore, this kind of thinking has been decisively and conclusively rejected in our contemporary society. I don’t think I need to take judicial notice or refer to social science literature. There is support in the case law. I refer to Justice Cory’s comments in his dissenting judgment in Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513 at paras. 173 and 175:
The historic disadvantage suffered by homosexual persons has been widely recognized and documented. Public harassment and verbal abuse of homosexual individuals is not uncommon. Homosexual women and men have been the victims of crimes of violence directed at them specifically because of their sexual orientation… The stigmatization of homosexual persons and the hatred which some members of the public have expressed towards them has forced many homosexuals to conceal their orientation. This imposes its own associated costs in the work place, the community and in private life…
Homosexual couples as well as homosexual individuals have suffered greatly as a result of discrimination. Sexual orientation is more than simply a "status" that an individual possesses. It is something that is demonstrated in an individual's conduct by the choice of a partner. The Charter protects religious beliefs and religious practice as aspects of religious freedom. So, too, should it be recognized that sexual orientation encompasses aspects of "status" and "conduct" and that both should receive protection. Sexual orientation is demonstrated in a person's choice of a life partner, whether heterosexual or homosexual. It follows that a lawful relationship which flows from sexual orientation should also be protected…
[27] Justice Cory wrote those words, in dissent, in 1995. In 2003 the Ontario Court of Appeal held that the common law definition of marriage involving opposite-sex couples was unconstitutional: Halpern v. Attorney General of Canada (2003), 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161 (C.A.). In 2014 United States Supreme Court held that same-sex couples had the same right of marriage as opposite-sex couples: Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
[28] In R. v. R.H., 2016 ONSC 6085 the complainant was a gay woman. The accused, a man, sought to introduce evidence that the complainant had previously had sexual relations with men. My colleague Morgan J. commented at para. 17:
Nevertheless, evidence of prior sexual conduct is not capable of being admissible under subsection 276(2)(c) in order to counter any stereotype or preconception about members of the LGBT community. That kind of evidence would be far more prejudicial than probative. To conclude otherwise would give credence to myths and preconceptions about sexual orientation, and could lead to an unacceptable situation wherein a gay or lesbian complainant, unlike a heterosexual complainant, could almost always be examined on prior sexual conduct despite the strictures of Seaboyer and section 276.
[29] The notion that gay people are promiscuous, licentious, and thereby immoral thankfully belongs to an earlier era, at least in this Court. Right-thinking members of the community do not accept the notion that sexual orientation has anything to do with moral virtue- or lack of moral virtue. This thinking is as outmoded and wrong-headed as the notion that a woman in sexual assault case “asked for it” because of the way she dressed. It also has nothing to do with the ability of Mr. Ivezic to make full answer and defence. The prejudicial effect is obvious.
(b) Do issues of trial economy militate in favour of or against admitting the evidence?
[30] This application can be seen as an attempt to lay the foundation for an unknown third party suspect defence. Under the circumstances here, the lifestyle evidence will only distract the jury because an unknown third party suspect defence does not apply, at least not on the evidence currently before the Court.
[31] There is no evidence that some other person committed a similar murder in similar circumstances while Mr. Ivezic could not have possibly committed it: Grant at para. 27. I have not been told of any anticipated evidence. I do not need to determine whether Karakatsanis J. was necessarily stating that unknown third party suspect evidence is only limited to those circumstances. I would interpret Karakatsanis J.’s statement to mean that there must at least be an actual human suspect who really exists and has simply not been identified – as opposed to a random theoretical person. See also: R. v. Tremble, 2017 ONCA 671.
[32] In this case, there is a real concern that the admission of this lifestyle evidence will distort the truth-seeking process of the trial and distract the jury from the real issues: R. v. Browne, 2017 ONSC 4615 at paras. 45-46.
(c) Is the evidence required to “balance” the competing portraits of the deceased and the accused?
[33] Mr. Gross-Stein and Mr. Ivezic have both suggested that the lifestyle evidence is necessary to present a balanced picture of Mr. Lanteigne. They say that there is a real danger that the jury may not understand that Mr. Papasotiriou’s (and by extension Mr. Ivezic’s) character is not in issue. The emails between Mr. Lanteigne and Mr. Papasotiriou are potentially damaging. They show that Mr. Papasotiriou had an extra-marital affair and that he was, in essence, a freeloader. Mr. Gross-Stein admits that the emails are probative, but he says that the prejudicial effect is high. They must be balanced by showing the true nature of Mr. Lanteigne – who also had extra-marital relationships.
[34] I disagree. Balance may play a role where an accused person has made a wholesale attack on the credibility of unsavoury Crown witnesses. Under those circumstances a trial judge might take that attack into account where there is a “Corbett” application. The trial judge may determine that unduly editing an accused person’s criminal record risks creating an unbalanced picture. For example, see: R. v. Hines, [2001] O.J. No. 1435 (Sup.Ct.).
[35] In this case, the balance sought is different. In this case, defence seeks to balance the image of Mr. Lanteigne by calling evidence that is, essentially, irrelevant to anything the jury has to decide. It is true that the email evidence has the potential to be seen as relevant to Mr. Papsotiriou’s character. I have already instructed the jury as to the permissible and impermissible uses of the emails. I will certainly have a further warning about this issue in my final instructions.
DISPOSITION
[36] The evidence of Mr. Lanteigne’s so-called high-risk lifestyle and his sexual orientation and preferences is not admissible to show that an unknown third party that he met on a dating or fetish website could have committed the murder. This ruling, does not, of course, restrict the defence in any way from attempting to raise a reasonable doubt that someone other than Mr. Ivezic and/or Mr. Papasotiriou committed the murder. It applies only to the admission of the so-called lifestyle evidence.
R.F. Goldstein J.
Released: March 12, 2018
COURT FILE NO.: CR-14-10000717
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC
RULING RE: LIFESTYLE EVIDENCE
R.F. Goldstein J.