Appeal dismissal illustrates downside of trial by jury

By John L. Hill

Law360 Canada (May 24, 2023, 2:45 PM EDT) --
John L. Hill
John L. Hill
The difficulty when appealing a conviction where the facts have been decided by a jury is there is no way to test the reasoning leading up to the decision. In a case decided by judge alone, it is well settled that the reasoning process is evident and can be challenged.

When appealing a jury’s verdict, appellate intervention can occur only if it can be shown that no properly instructed jury, acting judicially, could reasonably have found the appellant guilty (R. v. Binaris 2000 SCC 15; R. v. Chacon-Perez 2022 ONCA 3; R. v. Arias-Jackson 2007 SCC 52).

Defence counsel face a monumental obstacle when trying to argue a guilty verdict should be quashed and a new trial ordered when the facts of the case suggest a jury may have taken a dislike to the accused and reached a decision based on what to some may be undesirable personal characteristics or obnoxious performance in the courtroom. If the charge to the jury is acceptable and circumstantial evidence exists, an appeal court will have difficulty setting the verdict aside and ordering a new trial.

Counsel acting for Demitry Papasotiriou and Mladen Michael Ivezic had to attempt to fight this uphill battle in challenging convictions of first-degree murder in the recently decided R. v. Papasotiriou 2023 ONCA 358.

Papasotiriou and Allan Lanteigne were married on Nov. 27, 2004. On March 2, 2011, Lanteigne was found murdered in the front hallway of the marital home on Ossington Avenue in Toronto. At the time of the murder, Papasotiriou was in Greece. He did not return to Toronto until Oct. 31, 2012, to attend court proceedings relating to Lanteigne’s life insurance.Two days later he was arrested and charged with first degree murder.

On Jan. 8, 2013, the applicant’s co-accused, Michael Ivezic, was also arrested in Greece and returned to Canada. Both Papasotiriou and Ivezic were charged with first-degree murder. It was alleged that Papasotiriou and Ivezic, who was married with children, were having an affair and that they, together, planned the murder of Lanteigne.  

The preliminary inquiry was held in 2014 resulting in Ivezic being committed to stand trial but Papasotiriou being discharged. The deputy attorney general therefore preferred an indictment charging Papasotiriou with first-degree murder.

The case against Papasotiriou was completely circumstantial. There was some suggestion of a financial motive. Papasotiriou purchased the matrimonial home in 2006. Lanteigne stayed at the Toronto residence when in 2010, Papasotiriou left for Switzerland to pursue graduate studies in law. He soon abandoned his studies and moved to Greece, where he neither studied nor worked. Papasotiriou needed funds and repeatedly requested money from Lanteigne, who was working in Toronto. This was a great source of rancour between the two men. Lanteigne was also aware of his husband’s infidelity that had been ongoing for much of their time together.

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

The Crown relied upon email correspondence between Papasotiriou and Lanteigne, as well as Papasotiriou’s email exchanges with Ivezic to suggest complicity. Defence counsel raised rational explanations that the correspondence need not infer conspiracy.

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

Papasotiriou had counsel; Ivezic dismissed his lawyer and remained self-represented through much of the trial. His conduct probably upset jurors. He indicated his son was with him at the time of the murder but the son never testified. At the close of the Crown’s case, both applied for directed verdicts of acquittal, but the applications were dismissed. The trial judge placed heavy reliance on an email sent to Lanteigne on the day he was killed, in which Papasotiriou insisted that Lanteigne be home by a certain time, and that he not “dilly dally.” Lanteigne was killed shortly thereafter.

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

The Appeal Court agreed that in order for Papasotiriou to be convicted, it must be shown that Papasotiriou aided and abetted in the planned and deliberate murder of his husband. The Appeal Court concluded that the jury had been properly instructed and there was sufficient evidence to conclude both accused were participants in the murder. But of course, jury deliberations being secret, we will never understand the path the jury took to arrive at its conclusion.

The judgment suggests there was also ample ground to conclude the verdict may have been the product of a jury’s homophobic reaction to the men’s situation and disgust with the manner in which Ivezic wasted their time at trial. But with the presumption the jury did not act on improper inferences, the Appeal Court was forced to uphold the verdict. Perhaps the mistake the accused made was opting to be tried by judge and jury.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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