



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Papasotiriou, 2018 ONCA 719

DATE: 20180830

DOCKET: M49479 (C65707)

Trotter J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Demitry Papasotiriou

Applicant/Appellant

James Lockyer, for the applicant/appellant

Frank Au, for the respondent

Heard: August 23, 2017

ENDORSEMENT

A.

introduction

[1]

On June 3, 2018, after a lengthy jury trial, Demitry Papasotiriou and
    Michael Ivezic were found guilty of the first degree murder of Allan Lanteigne.
    On June 7, 2018, they were sentenced to life imprisonment with no parole
    eligibility for 25 years. Mr. Papasotiriou seeks bail pending his appeal.

B.

factual background

[2]

For the purposes of these reasons, it is not necessary to summarize the
    voluminous evidence in great detail.

[3]

Mr. Papasotiriou and Mr. Lanteigne were married. Mr. Papasotiriou and
    Mr. Ivezic were having an affair. On March 2, 2011, when Mr. Papasotiriou was
    in Greece, Mr. Lanteigne was beaten to death in the foyer of their Toronto
    matrimonial home. It is the Crowns theory that, while Mr. Papasotiriou was
    away, he encouraged Mr. Ivezic to kill Mr. Lanteigne, and assisted him by
    ensuring that Mr. Lanteigne arrived home at a certain time, where Mr. Ivezic
    lay in wait.

[4]

The case against Mr. Papasotiriou was completely circumstantial. There
    was some suggestion of a financial motive. The couple married in 2004. Mr. Papasotiriou
    purchased the matrimonial home in 2006. However, in 2010, he left for
    Switzerland to pursue graduate studies in law. He soon abandoned his studies
    and moved to Greece, where he neither studied nor worked. Mr. Papasotiriou needed
    funds and repeatedly requested money from Mr. Lanteigne, who was working in
    Toronto. This was a great source of rancour between the two men.

[5]

In 2008, Mr. Papasotiriou and Mr. Lanteigne bought a mutual life
    insurance policy for $2 million. Shortly after the murder, Mr. Papasotiriou
    attempted to collect the proceeds, as well as survivor benefits from Mr.
    Lanteignes employers.

[6]

To prove Mr. Papasotirious complicity in the murder, the Crown relied upon
    email correspondence between Mr. Papasotiriou and Mr. Lanteigne, as well as Mr.
    Papasotirious email exchanges with Mr. Ivezic.

[7]

The case against Mr. Ivezic was different. He had access to the
    matrimonial home, courtesy of Mr. Papasotiriou, and his DNA was found under Mr.
    Lanteignes fingernails.

[8]

As discussed below, Mr. Papasotiriou was discharged at the preliminary
    inquiry. In a lengthy decision, Nakatsuru J., then a judge of the Ontario Court
    of Justice, found that there was insufficient evidence to warrant a trial for
    Mr. Papasotiriou. However, Mr. Ivezic was committed to stand trial.

[9]

Mr. Papasotirious success was short lived. The Crown applied for
certiorari
to quash the order of Nakatsuru J. Before that application was heard, the
    Attorney General preferred an indictment under s. 577 of the
Criminal Code
.

[10]

The
    trial was long and difficult. Mr. Papasotiriou had counsel; Mr. Ivezic did not.
    At the close of the Crowns case, both applied for directed verdicts of
    acquittal. The trial judge, Goldstein J., dismissed their applications:
R.
    v. Papasotiriou-Lanteigne
, 2018 ONSC 1994. In relation to Mr.
    Papasotiriou, he placed heavy reliance on an email sent to Mr. Lanteigne on the
    day he was killed, in which Mr. Papasotiriou insisted that Mr. Lanteigne be
    home by a certain time, and that he not dilly dally. Mr. Lanteigne was killed
    shortly thereafter.

[11]

Following
    the dismissal of the directed verdict application, evidence was called on
    behalf of Mr. Papasotiriou that established that he had received an offer to
    purchase a property that he owned in Greece. His counsel argued before the jury
    that Mr. Papasotiriou wanted Mr. Lanteigne to be home at a particular time so
    that he could deliver the good news over the phone, instead of by email.

[12]

The
    jury deliberated for six days before delivering its verdicts. They asked no
    questions during their deliberations.

C.

Mr. Papasotiriou and his bail history

[13]

Mr.
    Papasotiriou is 38 years old. He was born in Greece and spent his first 11
    years in that country. He came to Canada after his parents marriage failed. He
    attended university and then law school, and was called to the Ontario Bar.

[14]

As
    noted above, Mr. Papasotiriou left Canada in 2010 and ended up in Greece. There
    was evidence that he intended to stay in Greece permanently. While the details
    are vague, his father gifted him a property, said to be worth around CDN $600,000.
    It was this property on which a purchase offer was received.

[15]

Mr.
    Ivezic went to Greece in the latter part of 2010 and lived with Mr.
    Papasotiriou for six months. Mr. Ivezic returned to Canada in January of 2011. Mr.
    Lanteigne was killed on March 2, 2011. In the following months, Mr. Ivezic assisted
    Mr. Papasotiriou in attempting to obtain death benefits and insurance proceeds.
    On May 14, 2011, Mr. Ivezic returned to live with Mr. Papasotiriou in Greece.

[16]

Mr.
    Papasotiriou finally returned to Canada on November 1, 2012, knowing that he
    was a suspect in Mr. Lanteignes murder. He was arrested on November 2, 2012. However,
    Mr. Papasotirious return to Canada needs to be seen in a broader context. His
    intention in returning was for the purpose of participating in litigation over
    the proceeds of the insurance policy he held with Mr. Lanteigne.

[17]

In
    August of 2013, Mr. Papasotiriou applied for bail. His application was heard by
    MacDonnell J. of the Superior Court of Justice. The Crown relied solely on the
    primary ground in s. 515(10)(a) of the
Criminal Code
to argue that Mr.
    Papasotiriou should not be released. MacDonnell J. found that Mr. Papasotiriou
    had not discharged his onus under s. 522(2) of the
Criminal Code
and
    ordered his detention.

[18]

In
    November of 2013, Mr. Papasotiriou re-applied for bail before MacDonnell J.,
    offering an improved plan of release. This application was also dismissed.

[19]

As
    noted above, after a lengthy preliminary inquiry, Nakatsuru J. discharged Mr.
    Papasotiriou on September 11, 2014. The Crown immediately launched a
certiorari
application. Mr. Papasotiriou made a number of appearances in the Superior
    Court in response to this application. The direct indictment was preferred on
    October 28, 2014, resulting in Mr. Papasotirious arrest the next day. During
    this time (September 11 to October 29), he was not subject to any form of
    release. He stayed with his mother and his father-in-law. He did not attempt to
    leave the jurisdiction.

[20]

Mr.
    Papasotiriou applied for bail again. This time he was released by Forestell J. of
    the Superior Court of Justice on a $400,000 recognizance with his mother,
    sister, and stepfather as sureties. The Crown did not seek to review this
    decision. Mr. Papasotiriou was on bail for the next three and a half years,
    during which there were no charges, nor any compliance issues. In fact, his
    conditions were loosened from time to time. Mr. Papasotiriou remained on bail
    during the jurys lengthy deliberations. Bail was terminated by operation of
    law upon his conviction for murder: s. 523(1)(a).

D.

grounds of appeal

[21]

Mr.
    Papasotiriou advances several grounds of appeal. His main argument is that the
    jurys verdict was unreasonable. As this was the only ground that was developed
    at the oral hearing, I will not address the others.

E.

the release plan

[22]

Mr.
    Papasotiriou proposes a plan of supervision that is more stringent than his
    pre-trial bail. It entails a $500,000 recognizance with the following sureties:
    (a) Kakouli Poka, his mother, in the amount of $400,000; (b) Wasiem Diab, his
    stepfather, in the amount of $75,000; and (c) Aida Elfekes, his stepfathers
    mother, in the amount of $25,000. The Crown did not cross-examine these
    sureties, nor does it suggest that any of them would be unsuitable.

[23]

In
    addition to the significant recognizance, a number of conditions are proposed.
    These include strict house arrest with very narrow exceptions. It is further
    proposed that, before being released, Mr. Papasotiriou be fitted with a GPS
    ankle bracelet to be monitored by Recovery Science Corporation. Mr.
    Papasotiriou, not the government, would be responsible for funding this service.

F.

analysis

(1)

Introduction

[24]

The criteria for bail pending appeal of a
    conviction are set out in s. 679(3) of the
Criminal Code
. An applicant must establish that: (a) the appeal is not frivolous;
    (b) he will surrender into custody in accordance with the terms of any bail
    order; and (c) detention is not necessary in the public interest.

(2)

Not Frivolous (s. 679(3)(a))

[25]

In
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, Moldaver J. said, at para. 20, that the not
    frivolous test is widely recognized as being a very low bar. The Crown does
    not suggest the that the appeal is frivolous. I agree.

(3)

Surrender into Custody (s. 679(3)(b))

[26]

The
    Crown argues that Mr. Papasotiriou has not discharged his onus on this ground,
    relying heavily on his ties to Greece.

[27]

As
    noted above, Mr. Papasotiriou returned to Canada from Greece,
knowing
he was under suspicion for murder, but not
because
he was under
    suspicion. He returned to pursue insurance proceeds. Nevertheless, his return
    was voluntary, and it is a modest factor in his favour.

[28]

In
    dismissing Mr. Papasotirious bail applications on the primary ground, MacDonnell
    J. was concerned that there is no mechanism to seek the return of Mr.
    Papasotiriou should he flee to Greece. Greece is not required to extradite its
    citizens.
[1]
This was a legitimate concern at the time. However, Mr. Papasotirious lengthy history
    of bail compliance, combined with the enhanced plan of supervision that is now proposed,
    render the extradition scenario remote.

[29]

Mr.
    Papasotirious compliance with his pre-trial bail order was flawless. There
    were no reported problems for three and a half years. This type of track record
    is an important factor that typically weighs in favour of release: see
R.
    v. Forcillo
, 2016 ONCA 606, at para. 19;
R. v. Matteo
, 2016 QCCA 2046,
    para. 13; and
R. v. Xanthoudakis
, 2016 QCCA 1809, at para. 9.

[30]

Furthermore,
    it is proposed that the previously successful release plan be augmented by
    electronic monitoring. Electronic monitoring is no guarantee against flight:
    see
United States of America v. Singh
, 2014 ONCA 559, at para. 17.
    However, it can be a useful enhancement to an otherwise credible release plan. It
    provides an extra layer of assurance against absconding. The technology is ever
    evolving. GPS monitoring, which was not available in some of the earlier cases
    commenting on the efficacy of this measure, is now the standard. Moreover, many
    Ontario judges have relied upon Recovery Science Corporation to assume this
    important role.
[2]
In this case, I too am prepared to do so, and consider it to be a significant element
    of the release plan.

[31]

I
    accept that, standing alone, Mr. Papasotirious connections to Greece may give
    pause for concern. However, any lingering concerns about flight are answered by
    his history of bail compliance and the strict release plan that is proposed. Accordingly,
    I am satisfied that the applicant will surrender into custody in accordance
    with his bail order.

(4)

The Public Interest (s. 679(3)(c))

[32]

There
    are two components of public interest to consider under s. 679(3)(c) of the
Criminal
    Code
 public safety and confidence in the administration of justice.

(a)

Public Safety

[33]

The
    Crown properly concedes that Mr. Papasotiriou has established that he will not
    commit offences if he is released on bail. Prior to being charged with this
    murder, the applicant has never been charged with a criminal offence, let alone
    a violent offence. He has discharged his onus under this part of s. 679(3)(c).

(b)

Public Confidence in the Administration of Justice

[34]

The Crown argues that Mr. Papasotiriou must be
    detained in order to maintain public confidence in the administration of
    justice.

[35]

The framework for applying this aspect of s.
    679(3)(c) was addressed in
Oland
. Writing for a
    unanimous Court, Moldaver J. explained that release on this ground is
    determined by the balancing of enforceability and reviewability considerations.

[36]

As Moldaver J. said at para. 38, enforceability
    considerations are informed by the similar basis for pre-trial detention in s.
    515(10)(c) of the
Code
 the tertiary
    ground. The following enumerated factors are applicable to the enforceability
    inquiry on appeal: the gravity of the offence (s. 515(10)(c)(ii)); the
    circumstances surrounding its commission (s. 515(10)(c)(iii)); and the
    potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)).

[37]

In this case, all three of these factors weigh
    against release. However, as Moldaver J. said at para. 39: By the same token,
    the absence of flight or public safety risks will attenuate against the
    enforceability interest.

[38]

The reviewability side of the ledger under s.
    679(3)(c) corresponds with s. 515(10)(c)(i)  the apparent strength of the
    prosecutions case. In the appellate sphere, the focus is on the strength of
    the grounds of appeal.

[39]

In oral argument, counsel for Mr. Papasotiriou
    advanced a credible argument that the verdict, based entirely on circumstantial
    evidence, was unreasonable and could not have been reached without
    impermissible speculation: s. 686(1)(a)(i). He argued that the body of emails
    relied upon by the Crown is susceptible to various interpretations and that the
    path to guilt rests heavily on a series of coincidences. The fact that Mr. Papasotiriou
    was discharged at the preliminary inquiry adds weight to this argument, at
    least for bail purposes.

[40]

The Crown downplays the importance of this
    decision by arguing that Nakatsuru J.s ruling was never reviewed by way of
certiorari
. However, the possibility of review was foreclosed by the Crowns
    decision to invoke s. 577 of the
Criminal Code
.

[41]

The Crown also relies on the fact that, on the
    directed verdict application, the trial judge came to a different conclusion
    when applying a comparable test of sufficiency, to a similar body of evidence.
    In his reasons, at para. 5, Goldstein J. recognized that his task did not
    involve a review of the correctness of Nakatsuru J.s reasons. He undertook his
    own evaluation of the evidence. Still, Goldstein J.s decision assists the
    Crown on this issue, though only to a limited degree.

[42]

On this application for bail pending appeal, Mr.
    Papasotiriou argues that Goldstein J. erred in law and misapprehended a key
    piece of evidence  the so-called dilly dally email. Whether this is so is
    unimportant. When this ground of appeal is argued before a panel of the court, it
    will not involve a review of the decisions of Goldstein J. or Nakatsuru J.
[3]
Under s. 686(1)(a)(i), the
    court will conduct its own assessment of the reasonableness of the verdict
    against the entirety of the evidence at trial (including defence evidence), utilizing
    a more robust scope of review: see
R. v. W.H.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at para. 40. Nevertheless, at this stage of
    the proceedings, the divergent conclusions reached by Nakatsuru J. and
    Goldstein J. demonstrate to me that the reasonableness of the verdict, as it
    relates to Mr. Papasotiriou, is clearly in issue. If he is successful on
    appeal, he will be entitled to an absolute acquittal. However, it will take a
    considerable amount of time before this court actually hears that appeal and
    decides this issue.

[43]

The public interest requires that I balance
    all of these factors  the circumstances of the applicant, the nature of the
    offence, the apparent strength of the appeal, and the time it will take to
    argue the appeal  to determine whether public confidence in the administration
    of justice would be undermined by Mr. Papasotirious release on bail. This is
    no easy task when the offence is as serious and as disturbing as this one. This
    balancing is explained in the following passage from
Oland
, in which Moldaver J. says, at paras. 49-51:

In the final analysis, there is no
    precise formula that can be applied to resolve the balance between
    enforceability and reviewability. A qualitative and contextual assessment is
    required. In this regard, I would reject a categorical approach to murder or
    other serious offences, as proposed by certain interveners. Instead, the
    principles that I have discussed should be applied uniformly.

That said,
where the applicant
    has been convicted of murder or some other very serious crime
, the public
    interest in enforceability will be high and will often outweigh the
    reviewability interest, particularly
where there are lingering public safety
    or flight concerns
and/or the grounds of appeal appear to be weak

On the other hand, where public
    safety or flight concerns are negligible,
and where the grounds of appeal clearly
    surpass the "not frivolous" criterion
, the public interest in
    reviewability may well overshadow the enforceability interest, even in the case
    of murder or other very serious offences. [Emphasis added. Citations omitted.]

[44]


Both sides rely on different aspects of this
    passage. On the one hand, it is clear that Mr. Papasotiriou has been convicted
    of the most serious crime in the
Criminal Code
. However, this does not
    foreclose his ability to obtain bail pending appeal. After all,
Oland
was
    itself a murder case. See also
R. v. Shlah
,
    2017 ABCA 425. On the other hand, given the proposed plan of release, which
    involves very strict supervision, there are no longer any lingering flight
    concerns. Moreover, the main ground of appeal clearly surpasses the not
    frivolous threshold.

[45]

Public
    confidence
is to be measured by the standard of a reasonable
    member of the public. As Moldaver J. said in
Oland
, at para. 47: This person is someone who is thoughtful,
    dispassionate, informed of the circumstances of the case and respectful of
    societys fundamental values. See also
R. v. St-Cloud,
2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80.

[46]

A
    reasonable and well-informed member of the public would appreciate that, although
    Mr. Papasotiriou has been convicted of a horrendous crime, proper proof of his
    involvement may well be in doubt. A reasonable member of the public would also realize
    that Mr. Papasotiriou is not simply being turned loose on society, with no
    precautions or safeguards, while his case works its way through the appeal
    process. To the contrary, he will be released on very stringent conditions,
    including house arrest, backed by GPS electronic monitoring, and the pledge of
    half a million dollars by his sureties. A similar plan, but without electronic
    monitoring, was completely successful for three and half years pending trial.

[47]

In
    conclusion, it is my view that a reasonable member of the public would accept
    that, in all of the circumstances of this case, Mr. Papasotirious release on bail
    pending appeal is consistent with the just and proper functioning of our
    justice system.

G.

Disposition and release order

[48]

The
    application is allowed. Mr. Papasotiriou is to be released on a $500,000
    recognizance with three sureties and 19 other conditions agreed to by counsel
    and approved by me.

G.T. Trotter
    J.A.





[1]
Mr. Ivezic was returned to Canada from Greece through extradition channels, but
    there is no indication that he is a Greek citizen.



[2]
The extent of this reliance is detailed in the report prepared by Mr. Stephen
    Tan, Director of Operations, Recovery Science Corporation. This document formed
    part of Mr. Papasotirious bail pending appeal application materials.



[3]
This is not to say that the careful reasons of both judges will not be of value
    in determining what inferences may properly be drawn from the evidence.


