COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zekarias, 2018 ONCA 585

DATE: 20180627

DOCKET: C62321

Sharpe, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adonay Zekarias

Appellant

Michael Dineen, for the appellant

Karen Papadopoulos, for the respondent

Heard: June 21, 2018

On appeal from the conviction entered on June 9, 2015, by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]          The appellant was convicted of the first degree murder of Nighisti Semret. On October 23, 2012, Ms. Semret was attacked from behind with a knife as she walked through a laneway in downtown Toronto. One of her many stab wounds was fatal.

A.           factual background

[2]          Ms. Semret was a refugee from Eritrea, as was the appellant. Their families knew each other in Eritrea. Both arrived in Canada within a week of each other. They initially stayed at a refugee shelter called Sojourn House. The two sometimes attended the same ESL classes.

[3]          In 2010, the appellant moved to the west end of the city, 12 kilometers away from where Ms. Semret was murdered. The exact nature of the relationship between Ms. Semret and the appellant is unknown. However, after the appellant moved away, they periodically remained in touch by phone.

[4]           Ms. Semret lived downtown and worked at the Delta Chelsea Hotel, supervising a staff of cleaners. When she was murdered, at 6:30 a.m., Ms. Semret was walking home from work. It was dark and rainy. A bystander, David Hughes, heard Ms. Semret’s screams and came to her assistance, using his umbrella to strike the assailant’s hand, which was holding a large kitchen knife. The attacker fled the scene. However, much blood was left behind – blood that matched the appellant’s, and which could only be ruled out by an astronomical probability of coincidence. The blood was found on Ms. Semret’s canvas bag (which was shredded during the attack) and on the umbrella wielded by Mr. Hughes. Crucially, the appellant’s DNA was found under Ms. Semret’s fingernails.

[5]          Although the appellant lived 12 kilometers away from the murder scene, his cellphone signal was detected at a tower within one kilometer of where Ms. Semret was killed. The appellant had made a call to his sister 35 minutes after the attack.

[6]          At 8:45 a.m., the appellant and his girlfriend called an ambulance to his west-end residence. He had very serious cuts to one of his hands and one of his wrists, requiring surgery. Both hands were then casted. The appellant gave differing accounts of how he received his injuries to medical personnel, but all of his explanations suggested some blunt force trauma (i.e., getting caught in a closing door). The jury heard expert evidence that the appellant’s wounds were more likely caused by sharp force trauma, involving glass or a knife.

[7]          Initially, the police were looking for a white man. Mr. Hughes, the man who tried to stop the attack, described a white male, 5’9” to 5’10”, with no facial hair. The police believed that the attacker walked with a limp. They issued a press release describing the suspect as white, 5’10” to 6’2”. The appellant has brown skin, he is 5’7”, often had facial hair, and did not walk with a limp.

[8]          An examination of the appellant’s computer revealed that, in the weeks following Ms. Semret’s murder, he searched the internet about the case.

[9]          The appellant’s casts were removed on November 26, 2012. The appellant’s surgeon told him that post-operative therapy was critical to his recovery and that, if he failed to do so, he risked permanent damage to his hands. Nevertheless, on December 1, 2012, the appellant booked a trip to Germany. He left on December 9, missing a follow-up appointment with his surgeon on December 10. He continued to monitor the case online. The appellant returned to Toronto on February 20, 2013, after postponing his return twice.

[10]       When the appellant was arrested on September 30, 2013, he gave a video statement, during which he made some demonstrably false statements about his knowledge of Ms. Semret’s murder, and his association with her.

B.           analysis

[11]       At the appellant’s trial, the critical issue was the identification of Ms. Semret’s killer. It seemed to be accepted that, whoever killed Ms. Semret, was guilty of first degree murder, especially since the evidence showed that her killer followed her down a laneway before the deadly knife attack.

[12]       Mr. Dineen advances three main arguments on behalf of the appellant. First, the trial judge erred in failing to caution the jury that the appellant’s after-the-fact conduct (treatment for his hands, his trip to Germany, and his monitoring of the investigation through media) was of no probative value in determining the appellant’s degree of culpability. Second, the trial judge erred in failing to warn the jury that it could not use the appellant’s statements to the police and medical personnel as circumstantial evidence of guilt unless they were also satisfied that it was concocted. Third, the trial judge erred in leaving evidence of the appellant’s trip to Germany as after-the-fact conduct evidence.

[13]       We would not give effect to any of these grounds.

(1)         No Probative Value Instruction

[14]       The appellant argued that the trial judge erred in failing to instruct the jury that the appellant’s after-the-fact conduct had no probative value in distinguishing between levels of culpability (i.e., manslaughter, second degree murder, and first degree murder): see R. v. Arcangioli, [1994] 1 S.C.R. 129.

[15]       While the trial judge could have given this instruction, we see no error in its omission. The instruction was not requested in advance of the charge, nor was its absence complained of after. Realistically, the only contentious issue in the case was the identity of Ms. Semret’s killer. Moreover, the trial judge did not link the after-the-fact conduct evidence to levels of culpability: see R. v. White, [1998] 2 S.C.R. 72, at para. 29.  

[16]       Once the jury was satisfied beyond a reasonable doubt that the appellant killed Ms. Semret, the evidence in support of first degree murder was overwhelming. It was open to the jury to find that the appellant travelled across the city, on a cold rainy morning, and waited for Ms. Semret to make her way home from work. The video evidence demonstrates that her killer stalked her, following her down a laneway before launching his attack.

[17]       We would dismiss this ground of appeal.

(2)         Failure to Provide an O’Connor Instruction

[18]       As noted above, the appellant provided a statement to the police, and made statements to medical personnel, which contained a number of false assertions.

[19]       Prior to the closing addresses, the Crown at trial (not Ms. Papadopoulos) sought the trial judge’s direction on the use to which the appellant’s purported falsehoods could be used. In her closing address, she urged the jury to use the appellant’s purported lies as indicative of his guilt.

[20]       The trial judge did not give an instruction that the jury could use the appellant’s false statements (if so found) as positive evidence of guilt only if there was independent evidence of concoction: see R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.). However, when the issue was raised by the Crown during the pre-charge conference, defence counsel (not Mr. Dineen) did not join in the request for an O’Connor instruction. No complaint was made after the trial judge delivered his charge.

[21]       While the safer course would have been to include such an instruction, we cannot say that the manner in which this issue was left with the jury undermined the appellant’s right to a fair trial: see R. v. Polimac, 2010 ONCA 346, 262 O.A.C. 91, leave to appeal refused, [2010] S.C.C.A. No. 263, at para. 106. As the appellant concedes in his factum, there was independent evidence that arguably showed some of the appellant’s falsehoods to be concocted.

[22]       In the alternative, if the charge was lacking in this respect, we would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. As noted above, the case against the appellant was overwhelming, even without his statements. We place particular emphasis on: the fact that the appellant and Ms. Semret knew each other; the DNA evidence connecting the appellant to Ms. Semret; the appellant’s serious hand and wrist injuries that were likely caused by sharp force trauma; the appellant’s monitoring of the investigation, both in Canada and in Germany; and that the appellant used his cellphone close in time and place to the early morning murder, even though he lived 12 kilometers away.

[23]       We are satisfied that, had an O’Connor instruction been given, the result would inevitably have been the same: R. v. Laliberte, 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-5.

[24]       We would dismiss this ground of appeal.

(3)         The Trip to Germany

[25]       The appellant argues that the evidence of the Germany trip should not have been admitted because, on its face, there was no suggestion that it had anything to do with the investigation into Ms. Semret’s murder. We disagree.

[26]       The Germany trip must be viewed in the context of all of the evidence. The timing of the trip was crucial. Although the appellant left for Germany about seven weeks after the murder, which on its face might serve to disconnect it from the murder, the appellant had casts on his hands for many weeks. During this time, he was unable to dress, eat, or attend to his personal care without assistance. When his casts came off, the appellant booked his flight within a week, paying in cash. He travelled at a time when he should have been receiving post-surgical therapy.

[27]       In the context of all of the evidence, it was appropriate to allow the jury to consider the Germany trip on the issue of identification. The appellant monitored the investigation before he left and while he was in Germany. When he returned, the police were still looking for someone who did not look like him. It was open to the jury to find that, as a matter of everyday experience and common sense, this activity was driven by the appellant’s concern about his own liability.

[28]       The jury was not required to accept this interpretation of the evidence. However, it was reasonably available in the context of the evidence as a whole. The trial judge left the issue with the jury, fairly pointing out its limitations. As he said:

In terms of the trip to Germany, you will consider that the murder occurred on October 23, 2012 and that Mr. Zekarias did not travel to Germany until December 9, 2012. While almost all of us travel at some point in our lives, some much more than others. In travelling to another country, Mr. Zekarias was doing something that a lot of people do, especially around Christmas time.

[29]       We would dismiss this ground of appeal.

C.           Conclusion and disposition

[30]       The appeal is dismissed.

“R.J. Sharpe J.A.”

“L.B. Roberts J.A.”

“G.T. Trotter J.A.”