COURT FILE NO.: CR-14-10000717-0000

DATE: 20221012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

Applicants

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

Gabriel Gross-Stein, for Dimitry Papsotiriou

Michael Ivezic, Self-Represented

Ian Smith and Amy Ohler, Amicus

R.F. GOLDSTEIN J.

[1] Mr. Papasotiriou and Mr. Ivezic are charged with first-degree murder. The Crown alleges that they murdered Allen Lanteigne. Mr. Lanteigne was murdered in his home at 934 Ossington Street in Toronto likely, on March 2, 2011. His body was discovered the next day. He was lifeless and lying in a pool of blood. He was bludgeoned to death. The key issue in this trial is whether Mr. Ivezic did the bludgeoning, and whether Mr. Papasotiriou abetted him.

[2] Mr. Lanteigne and Mr. Papasotiriou were married to each other. Mr. Papasotiriou and Mr. Ivezic were having an extra-marital affair. Mr. Papasotiriou was living in Greece at the time of the murder. Mr. Ivezic was in Ontario, living in Mississauga with his wife and children.

[3] The Crown has closed its case. Mr. Gross-Stein, for Mr. Papasotiriou, has called one witness. Mr. Papasotiriou did not testify. Mr. Ivezic, who is currently representing himself, sought to introduce a hearsay statement into evidence. Mr. Lanteigne allegedly made the statement to Sonnia Baby. Ms. Baby and Mr. Lanteigne were friends and co-workers. Mr. Lanteigne made the statement in February 2010 while Ms. Baby visited him at 934 Ossington Avenue.

[4] On April 16, 2018 I ruled that Mr. Ivezic could introduce the hearsay statement into evidence through Ms. Baby. I indicated that reasons would follow. Ms. Baby testified on April 17, 2018.

[5] In October, 2022, as this matter was being prepared for appeal, I reviewed the transcript of my oral ruling. In my ruling I stated:

For more detailed reasons to follow, and notwithstanding Ms. Santora’s very helpful factum, which sets out the issues in detail, I find that the statement to Ms. Lanteigne to Ms. Baby meets threshold reliability, although I must say just barely.

[6] Upon reviewing the transcript, I realized that I had not released written reasons. When I checked my records I found that I had prepared a draft ruling that I had never released. There were many rulings in this matter, and through inadvertence on my part this one “fell through the cracks.” The responsibility is mine alone. The following are my reasons, prepared in draft during and shortly after the trial, but released now:

THE STATEMENT

[7] Two police officers interviewed Ms. Baby on March 9, 2011. Ms. Baby was a friend of Mr. Lanteigne’s. They also worked together at North 44 Restaurant and in the catering business. The statement is 69 pages. The key evidence, however, is very short. Ms. Baby told the police that Mr. Lanteigne told her the following information:

• That Mr. Papasotiriou had a boyfriend;
• The boyfriend was married to a woman and had two children;
• That he had met the boyfriend;
• That the boyfriend had been to the house;
• That the boyfriend had met Mr. Papsotiriou in Switzerland.

[8] Ms. Baby told the police that the conversation took place on the evening that Canada won the Olympic hockey game in 2010. She was at dinner at 934 Ossington. She recalled who was present at the dinner. She also recalled that people went to the third floor to watch the hockey game. She recalled that Mr. Lanteigne had been drinking when he made the statement.

ANALYSIS

[9] Ms. Santora, for the Crown, concedes that the statement meets the test of necessity. She argues, however, that the statement fails to meet the test of threshold reliability. Threshold reliability can ordinarily be established procedurally (such as having been taken under oath) or substantively (such as inherent trustworthiness). Ms. Santora argues that neither can be established.

[10] With respect, I disagree. The statement meets threshold reliability because it is sufficiently inherently trustworthy to permit consideration by the trier of fact.

[11] The key features of hearsay are:

• An out-of-court statement introduced to prove the truth of its contents; and,
• The absence of a contemporaneous opportunity to cross-examine the person who made the statement.

[12] See: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; Watt’s Manual of Criminal Evidence, §26.01.

[13] The problem with hearsay evidence is that the trier of fact cannot easily investigate the declarant’s memory, perception, narration, or sincerity. Mistakes or falsehoods may go undetected: Khelawon, at para. 2; R. v. M.G.T., 2017 ONCA 736 at para. 114.

[14] Khelawon introduced a functional analysis to the admissibility of hearsay. The analysis is conducted in three stages:

• First, a trial judge determines whether the statement is hearsay, since hearsay is presumptively admissible (paras. 56, 59);
• Second, the trial judge determines whether one of the traditional hearsay exceptions applies (para. 60);
• Third, if the traditional exceptions do not apply, the court must determine whether it is necessary and reliable.

[15] Allan Lanteigne’s ante-mortem statement to Ms. Baby is hearsay since Mr. Ivezic wishes to introduce it for the truth of its contents. It is common ground that none of the traditional hearsay exceptions apply. The Crown concedes that the statement is necessary. It is my duty to determine whether the hearsay meets threshold reliability. If it does, the hearsay can be left with the jury to determine the weight of the statement, if any. As Charron J. put it in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 at para. 39:

Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). When threshold reliability is based on the inherent trustworthiness of the statement, the trial judge and the trier of fact may both assess the trustworthiness of the hearsay statement. However, they do so for different purposes (Khelawon, at paras. 3 and 50). In assessing ultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case (Khelawon, at para. 50; D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 35-36). This determination is made "in the context of the entirety of the evidence" including [page885] evidence that corroborates the accused's guilt or the declarant's overall credibility (Khelawon, at para. 3).

[16] Even where hearsay meets threshold reliability, the trial judge has a residual discretion to exclude it if the prejudicial effect outweighs the probative value: Khelawon, at para. 49; Bradshaw, at para. 24.

[17] A party can meet threshold reliability by showing on a balance of probabilities that the statement is either procedurally reliable or substantively reliable. Procedural reliability is established where there are adequate substitutes for the oath, personal presence, or cross-examination. Substantive reliability can be established by establishing that the statement is inherently trustworthy: Khelawon at paras. 61-63; Bradshaw at paras. 27-32 The standard for substantive reliability is high, such that the statement is so reliable that cross-examination would add little, if anything: M.G.T., paras. 116-118.

[18] The trial judge’s duty, as set out by Dawson J. in R. v. Merritt, 2017 ONSC 6203 (Ruling No. 16) at para. 24 is to:

Identify the specific hearsay dangers that arise in the particular circumstances of the case and, assuming necessity is established, evaluate whether those case specific hearsay dangers are adequately overcome to establish threshold reliability.

[19] Procedural reliability simply cannot be met. There is no adequate substitute for testing the evidence. Adequate substitutes can include a video recording, the presence of an oath, a warning about the consequences of lying, or some form of cross-examination. That cross-examination can be from a preliminary inquiry. It can also include cross-examination of a recanting witness a trial: Bradshaw, at para. 28. None of those procedural safeguards are present.

[20] The specific hearsay dangers identified by the Crown all relate to unanswered questions about the accuracy of Mr. Lanteigne’s statement. Ms. Santora has pointed to several of these in the Crown’s factum:

• What were the circumstances that elicited Mr. Lanteigne’s comments about his husband’s fidelity?
• Is the ‘boyfriend’ described by Mr. Lanteigne, Michael Ivezic?
• What caused Mr. Lanteigne to believe that the man he was meeting was Mr. Papasotiriou’s boyfriend? (potential for double hearsay)
• What did the boyfriend look like?
• When did Mr. Lanteigne meet the boyfriend?
• What was the boyfriend’s name?
• Where did Mr. Lanteigne meet him?
• At the time of the meeting was Mr. Lanteigne aware that this was Mr. Papasotiriou’s boyfriend or did he come to that understanding at a later time?
• What was the reason for the meeting: chance, business, delivery, purposeful introduction?
• How many times did he meet with the boyfriend?
• Who else was present when Mr. Lanteigne met with the boyfriend?
• How did Mr. Lanteigne feel about that meeting?
• How long did the meeting last?
• How was the meeting arranged?
• When the boyfriend came to the house was Mr. Lanteigne present?
• Does ‘been’ mean the boyfriend entered the house, or simply knocked on the door?
• Where in the house did the boyfriend go, and what activities did he undertake while inside?
• Did Mr. Lanteigne have any intention of meeting with the boyfriend again?

[21] The Crown raises legitimate questions about these details. None of these details can be elicited from Ms. Baby, obviously. In my view, however, these questions go to the weight of the statement. In other words, these questions generally relate to ultimate reliability and not threshold reliability. Although the test for substantive reliability is high, I believe that it is met in this case when I consider the totality of the circumstances. In my respectful view, the hearsay dangers can be overcome for the following reasons:

• The statement was made to Ms. Baby in the context of a casual discussion after dinner, and not under stressful circumstances;
• Ms. Baby and Mr. Lanteigne were friends and co-workers;
• Ms. Baby was frank to the police about Mr. Lanteigne’s positive and negative qualities;
• Ms. Baby was also frank to the police about her dislike of Mr. Papasotiriou;
• The statement appears to have been made spontaneously;
• Ms. Baby’s recollection appears to be quite good;
• There is no obvious reason to doubt the truthfulness of the statement; and,
• There are many obvious reasons that support the truthfulness of the statement
• • in other words, there is evidence that corroborates the statement.

[22] See: R. v. Hindessa, 2009 48836 (ON SC), [2009] O.J. No. 3837 (Sup.Ct) at para. 14.

[23] Charron J. noted in Bradshaw at para. 49 regarding corroborative evidence:

A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay danger relates to the declarant's sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

[24] A wealth of email and documentary evidence establishes that Mr. Papsotiriou had a boyfriend; that the boyfriend was Mr. Ivezic; and that they had met up in Europe. Mr. Lanteigne complained in his emails to Mr. Papsotiriou about paying for European travel. Mr. Ivezic had a wife and children.

[25] In this case, the lack of evidence can also be corroborative: there is no evidence (or even suggestion) that Mr. Papasotiriou was dating two different men, each of whom was married with children, and each of whom had come to visit him in Europe.

[26] There is also corroborative evidence from Mr. Langteigne in other hearsay statements that were elicited by the Crown as a necessary and reliable:

• Mr. Lanteigne also told Grazia Masi that Mr. Papasotiriou was dating another man. That evidence was elicited by the Crown;
• Mr. Lanteigne told Claudia Ammar in January 2011 or November 2010 that Mr. Papasotiriou was in Switzerland. He was travelling with a man with whom he was having an affair. The man was married with two children, as far as she could remember. That evidence was also elicited by the Crown;
• Mr. Lanteigne told Jarvis Belding that Mr. Papasotirou had a boyfriend. Mr. Papasotirou told Mr. Lanteigne that he wanted him to move out of the house so that Mr. Papasotiriou could bring his boyfriend home from Europe to stay with him. That evidence was also elicited by the Crown;

[27] In fairness, these statements were admitted for Mr. Lanteigne’s state of mind rather than for the truth of the contents, but I do not think the distinction matters for the purpose of determining threshold reliability.

[28] Finally, Ms. Baby was also able to recall the time and place of Mr. Langeigne’s statement by reference to an Olympic hockey game in 2010. While this is not the strongest example of corroboration, in my view it is part of the totality of the circumstances.

[29] The trial judge is also required to identify alternative or even speculative explanations for the hearsay statement. The corroborative evidence can assist in showing that these statements are of no assistance (as opposed to being equally consistent with truthfulness and accuracy as well as with other explanations): Bradsaw at para. 48.

[30] In my view, another explanation could include Mr. Papsotiriou having more than one boyfriend. I find that unpersuasive. There is no evidence that Mr. Papsotiriou had another married boyfriend who had two children and visited him in Europe. Another explanation was that Mr. Lanteigne was simply blowing off steam about Mr. Papsotiriou and created a boyfriend so that he could complain. One could hardly blame Mr. Lanteigne for being angry at Mr. Papsotiriou, but I find that also unpersuasive.

[31] The Crown also argues that the probative value of the evidence is outweighed by the prejudicial effect. The probative value is slight, because the statement merely establishes that Mr. Lanteine believed Mr. Papasotiriou was having an extra-marital affair. There are other means to establish prior contact between Mr. Lanteigne and Mr. Ivezic. Moreover, there is no evidence to support when this meeting occurred. It is not probative of a possible defence of innocent transfer of DNA.

[32] With respect, I disagree. Mr. Ivezic proposes to show that he knew Mr. Lanteigne. This is an important issue for his defence. Ms. Baby’s statement indicates that Mr. Lanteigne said he had met “the boyfriend”. While the probative value of this evidence is certainly not overwhelming, there is little if any prejudicial effect. It will not district the jury from the main task of determining whether Mr. Ivezic and/or Mr. Papasotiriou are guilty of murder. I do not believe it will lead to speculation by the jury.

[33] I conclude with a comment about trial fairness. In Khelawon at paras. 47 Charron J. stated:

The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial: R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262. The concern over trial fairness is one of the paramount reasons for rationalizing the traditional hearsay exceptions in accordance with the principled approach. As stated by Iacobucci J. in Starr, at para. 200, in respect of Crown evidence: "It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception."

[34] In my view, the fair thing to do in these circumstances is to permit the defence to introduce the statement. It is, after all, a defence request. There is no danger that admission would raise the spectre of a wrongful conviction. Moreover, I permitted the Crown to introduce ante-mortem statements of Allen Lanteigne: R. v. Papsotiriou and Ivezic, 2017 ONSC 7221. As I mentioned, they were for a different purpose – to show the state of mind of the deceased – but it strikes me that it would be unfair to allow the Crown to introduce ante-mortem statements but not the defence.

DISPOSITION

[35] As I ruled at the time, the statement of Allen Lanteigne may be introduced through Sonnia Baby.

Released: October 12, 2022

COURT FILE NO.: CR-14-10000717-0000

DATE: 20221012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

Applicants

REASONS FOR JUDGMENT ON ADMISSIBILITY OF ANTE-MORTEM STATEMENTS OF ALLEN LANTEIGNE NO. 2

R.F. Goldstein J.