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
Hank Goody, Anna Tenhouse, and Pamela Santora, for the Crown
Gabriel Gross-Stein, for Demitry Papasotiriou
Jack Gemmell, for Michael Ivezic
HEARD: May 7, 8, 9, 10, 22, 23, & 24, 2018
R.F. GOLDSTEIN J.
RULING RE: AFTER THE FACT CONDUCT
[1] Demitry Papasotiriou and Michael Ivezic are charged with first degree murder. An important part of the Crown’s theory is that Mr. Papasotiriou had a motive to murder Allan Lanteigne, his husband. That motive was financial. Mr. Papsotiriou was the beneficiary of Mr. Lanteigne’s estate, including a very large insurance policy from Manulife. After the murder Mr. Papasotiriou sought to collect on the insurance policy. The benefit under that policy was $2 million. Mr. Papsotiriou also sought to collect on Mr. Lanteigne’s University of Toronto employment insurance, which was about $50,000.00. He did successfully cash out Mr. Lanteigne’s TD Bank RRSP, and obtained about $50,000.00.
[2] The Crown’s theory is that the collection of benefits was part of the fulfillment of the plan to murder Mr. Lanteigne. Mr. Ivezic assisted Mr. Papasotiriou with the collection of the benefits. The Crown points out, however, that the one benefit Mr. Ivezic did not assist with was the $2 million life insurance policy.
[3] Mr. Gemmell and Mr. Gross-Stein, on behalf of Mr. Ivezic and Mr. Papasotiriou, respectively, argue that I should tell the jury that the after-the-fact evidence has no probative value. They say I should give this instruction simply because Mr. Papasotiriou would have attempted to collect these benefits no matter what the cause of Mr. Lanteigne’s death. Mr. Ivezic, as his friend, was simply assisting him. There is evidence that members of Mr. Papsotiriou’s family also made inquiries about death benefits. There is also evidence, such as from Mr. Gagliardi, that it is completely normal for people to attempt to make inquiries and collect death benefits.
[4] I respectfully disagree. This is an identity case based on circumstantial evidence. It is not a case of diminished responsibility. In my view, the after-the-fact conduct is circumstantially relevant to the identity of the killer or killers of Mr. Lanteigne. Whether the evidence is used in that way is up to the jury.
[5] The general rule is that after-the-fact conduct may constitute circumstantial evidence of guilt. The admissibility of after-the-fact conduct depends upon its relevance, as with all circumstantial evidence. The evidence must be assessed on a case-by-case basis. Thus, the limiting instructions are governed by the same principles as all circumstantial evidence: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at paras. 22, 31. As with all evidence, a trial judge has discretion to exclude evidence where the prejudicial effect outweighs the probative value: White, para. 50.
[6] Laskin J.A. very recently summarized the principles in R. v. Vorobiov, 2018 ONCA 448 at para. 54:
An accused’s conduct after the offence in question – now labeled “post-offence conduct” – is circumstantial evidence that may help the trier of fact determine the accused’s culpability for the crime. In a jury trial, the trial judge is entitled to instruct the jury it may take into account the accused’s post-offence conduct in deciding on the accused’s guilt if, based on human experience and logic, the conduct shows that the accused acted in a manner consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. If, on the other hand, the accused’s post-offence conduct has no relevance to the accused’s culpability, the trial judge should instruct the jury that the accused’s conduct has no probative value and that the jury should not consider it in deciding on the accused’s guilt for the offence charged
[7] A “no probative value” instruction may be required where “the accused’s post-offence conduct is “equally explained by” or “equally consistent with” two or more offences”: White, para. 37; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129; Vorobiov, para. 62.
[8] The classic example of the value of a “no probative value” instruction occurs where the issue is the level of culpability. For example, flight may be equally consistent with manslaughter and second degree murder, where there is no issue of identity. As explained by Rothstein J. in White at para. 39:
In some cases, an item of evidence may be probative of one live issue, but not of another. For example, flight per se may be relevant in determining the identity of the assailant, but may not be relevant in determining the accused’s level of culpability as between murder and manslaughter. In such a case, the rules of evidence remain unchanged: the evidence is left with the jury, for it to weigh with respect to the issue of identity; the jury is precluded from considering the same evidence with respect to determining the mens rea for murder as opposed to manslaughter, by way of a limiting instruction to the effect that this evidence is not probative of this particular live issue. That judges must sometimes give limiting instructions as to appropriate and inappropriate inferences to be drawn from the evidence is merely an application of the rule of relevance tailored to different live issues in a single case.
[9] In Vorobiov at para. 62, Laskin J.A. stated that a no probative value instruction “is justified only if the accused’s post-offence conduct is equally explained by or equally consistent with either the offence charged or some other culpable act – usually another culpable act admitted by the accused.”
[10] Here, the post-offence conduct relates directly to the alleged motive for the crime. Furthermore, Mr. Ivezic, the alleged killer, was directly involved in the attempt to obtain financial benefits. He attended at both the TD bank and the University of Toronto on Mr. Papsotiriou’s behalf and at his direction. He made phone calls to a former employer of Mr. Lanteigne to inquire about benefits. He had key documents (or copies of key documents) at his home. He also used a false name at the University of Toronto. Mr. Ivezic explained his behaviour in his testimony, including the use of the name “Michael Jones”. Mr. Gross-Stein, in his submissions, suggests that as a friend of Mr. Papasotiriou there was nothing suspicious about Mr. Ivezic’s activities. Mr. Gross-Stein also argues that it makes no sense that if Mr. Papasotiriou aided or abetted Mr. Ivezic in killing Mr. Langeigne that he would then ask Mr. Ivezic to help collect the benefits. Mr. Gross-Stein may be right, and the jury may accept Mr. Ivezic’s explanation. But that is up to them. The post-offence conduct is directly relevant to motive. Motive is directly relevant to identity.
[11] Although I have left second-degree murder with the jury, they must still grapple with the question of identity before they consider the question of planning and deliberation. Furthermore, if they conclude that Mr. Ivezic was the killer and the murder was planned and deliberate, then they must grapple with whether Mr. Papasotiriou aided and/or abetted Mr. Ivezic. Motive, it seems to me, is directly relevant to that issue, and the after-the-fact conduct is directly relevant to the question of motive, which is in turn related to identity – not the level of culpability.
[12] For those reasons, I will not give a “no probative value” instruction to the jury.
R.F. Goldstein J.
Released: May , 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
RULING RE: AFTER THE FACT CONDUCT
R.F. Goldstein J.