Court of Appeal for Ontario

Date: 2022-04-22 Docket: C67553

Judges: Gillese, Lauwers and Brown JJ.A.

Between: Her Majesty the Queen, Respondent and Adonay Zekarias, Appellant

Counsel: Alexander Ostroff and Craig Zeeh, for the appellant Mabel Lai and Katie Doherty, for the respondent

Heard: March 28, 2022 by video conference

On appeal from the conviction entered on April 23, 2018 and the sentence imposed on August 14, 2018 by Justice Michael F. Brown of the Superior Court of Justice, sitting without a jury, with reasons reported at 2018 ONSC 2588.

Reasons for Decision

[1] The trial judge convicted the appellant of the second degree murder of Rigat Ghirmay and of committing an indignity to a dead human body by dismembering and disposing of her body. The appellant was sentenced to life imprisonment with a 20-year parole ineligibility period, to be served consecutively to his previously imposed sentence for the first degree murder of Nighisti Semret. He was also sentenced to a five-year concurrent term for committing an indignity to a dead human body.

[2] For the reasons that follow, we dismiss the conviction appeal.

[3] In the conviction appeal, the appellant submits that the trial judge made four errors: 1) in admitting as relevant the evidence of Ms. Semret’s murder to support the Crown’s theory of murder; 2) in relying on impermissible speculation to find that the appellant had motive; 3) in his use of after-the-fact conduct evidence (the dismemberment and disposal of the body) to prove intent; and 4) in not excluding evidence from the appellant’s apartment for breaches of the Canadian Charter of Rights and Freedoms.

(1) The Evidence of Ms. Semret’s Murder was Admissible

[4] The appellant takes particular aim at the introduction of the appellant’s conviction for the murder of Ms. Semret. The trial judge found that the purpose for which the Crown proposed to call the evidence was to establish motive. The trial judge put the admissibility test in the following terms, which the appellant does not contest:

To be relevant, an item of evidence need not conclusively establish the proposition of fact for which it is offered or even make that proposition of fact more probable than not. All that is required is that the item of evidence reasonably show by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than without it: see R. v. McDonald, para. 67.

[5] The Crown’s theory was that the appellant believed Ms. Ghirmay knew or suspected that he had killed Ms. Semret and that he silenced her as a result, and disposed of her body in order to avoid his detection for Ms. Semret’s murder.

[6] Against that backdrop the Crown brought an application to introduce evidence of the appellant’s prior discreditable conduct in murdering Ms. Semret. The Crown wanted to call the evidence to prove motive, as established by the following chain of reasoning:

(a) that Mr. Zekarias murdered Ms. Semret on October 23, 2012, and was convicted of her first degree murder on June 9, 2015;

(b) that Mr. Zekarias lied to the 911 dispatcher and medical practitioners about how he sustained the injuries to his hands in circumstances where Ms. Ghirmay was present for Mr. Zekarias’ explanations and saw his injuries;

(c) that Mr. Zekarias fled to Frankfurt, Germany in circumstances where his flight was booked, paid for and rebooked with the assistance of Ms. Ghirmay;

(d) that Mr. Zekarias was monitoring the police investigation of the death of Ms. Semret on a computer he had with him in Germany;

(e) that the police had a press conference on May 6, 2013 which was reported in the media indicating that the suspect in Ms. Semret’s murder may have injured his hand or arm and that the police were offering a $50,000 reward for information leading to the arrest and conviction of the person responsible for the stabbing death of Ms. Semret.

[7] The appellant concedes that all five elements in the chain or reasoning are well-supported in the evidence but argues that knowledge of the content of the press conference on May 6, 2013 had not been linked to the appellant. In finding that there was a link, the trial judge erred in relying on nothing more than speculation. Accordingly, the appellant argues that the evidence of motive did not cross the threshold of relevance and should not have been admitted.

[8] The trial judge’s threshold ruling was to admit the evidence. He stated:

Any evidence that shows or tends to show directly or by inference that Mr. Zekarias had a motive to kill Ms. Ghirmay is relevant to prove that Mr. Zekarias had such a motive: see R. v. Candir, para. 74.

I am satisfied that the proposed Crown evidence, as a matter of logic and common sense, is not mere speculation but is capable of providing evidence of motive to kill Ms. Ghirmay.

[9] In R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, this court laid out the parameters for admitting discreditable conduct evidence for motive. Rouleau J.A. noted, at paras. 100-101:

[E]vidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, [1992] 2 S.C.R. 915, at pp. 938–941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70–109. [Emphasis added.]

[10] In our view the trial judge’s self-instruction on the threshold motion was accurate. He did not err in admitting the evidence that the appellant murdered Ms. Semret.

(2) Ms. Semret’s Murder was Relevant to the Appellant’s Motive

[11] The appellant argues that in functioning as the trier of fact on the merits, the trial judge relied on impermissible speculation to find that the appellant had motive to kill Ms. Ghirmay in order to cover up his murder of Ms. Semret. The appellant asserts that there was no evidence that the appellant knew the critical information that the police released at their May 6 press conference. Without that link, the evidence would not be relevant; the trial judge used it speculatively.

[12] However, this submission overplays the importance of the press conference and downplays the other evidence the trial judge invoked. He addressed the evidence on motive extensively, from paras. 82 to 106 of his reasons.

[13] The trial judge found, at para. 105, that “on the whole of the evidence,… Mr. Zekarias had a motive to kill Ms. Ghirmay in order to prevent Ms. Ghirmay from going to the police with the information she had regarding Mr. Zekarias in relation to the murder of Ms. Semret”. He summarized his chain of reasoning in para. 103:

Given that Mr. Zekarias knew:

1. that Ms. Ghirmay was aware of the police investigation into Ms. Semret's death;

2. that Ms. Ghirmay was aware of his serious hand and wrist injuries and was present when others were questioning him about the source of those injuries;

3. that the police in the press conference of May 6, 2013 were suggesting that the assailant in Ms. Semret's murder received hand or arm wounds and were asking that the public contact the police regarding an individual with such injuries;

4. that the police were offering a $50,000 reward for information that would lead to the arrest and conviction of the individual responsible for the murder of Ms. Semret,

it is a reasonable inference and I find, that Mr. Zekarias was concerned that Ms. Ghirmay was aware, or would soon become aware, that he was involved in Ms. Semret's murder and would contact the police.

[14] Each of the elements were well-supported in the evidence. It was firmly established that the appellant had murdered Ms. Semret and that this murder investigation remained unsolved at the time of Ms. Ghirmay’s murder. The trial judge held, at para. 96 that: “It is a reasonable inference that [the appellant] followed the police investigation into Ms. Semret's murder, if for no other reason than self-preservation”. He found that the appellant followed the investigation closely, as he noted in para. 97:

I find that Mr. Zekarias had already been searching on his computer for information pertaining to Ms. Semret's murder. Between October 28, 2012 and February 18, 2013, there were 22 different times where information was sought pertaining to the murder of Ms. Semret. These searches resulted in a combination of articles, videos, press conferences, and other types of media being accessed and downloaded. Many of these searches occurred when Mr. Zekarias was in Germany with his computer.

[15] Regarding the appellant’s awareness of the May 6 press conference, the trial judge made an inference. He said, at para. 99:

It is reasonable to infer, and I so find, that Mr. Zekarias became aware of the details of the May 6 police press conference in some manner shortly after it was reported upon in the media and prior to Ms. Ghirmay's death. Mr. Zekarias had an interest in following the news about Ms. Semret's murder because he was the person who murdered her. He had followed the news about her murder even when he was in Germany. He was looking at information regarding Ms. Semret's death on May 9, 2013. The details of the May 6, 2013 press conference received extensive media coverage and the murder of Ms. Semret was widely discussed both in the Eritrean community and the wider community.

[16] The trial judge then concluded, at para. 101: “I also find it to be a reasonable inference in these circumstances and so find that having been made aware of the details of the May 6, 2013 police press conference, Mr. Zekarias was concerned that Ms. Ghirmay was aware, or would soon become aware by piecing together events, that he was involved in Ms. Semret's murder and would then contact the police.” This led the trial judge to his finding at para. 105, quoted at the outset of this discussion, that the appellant had the motive to kill Ms. Ghirmay.

[17] There is no doubt that Ms. Semret’s murder was relevant to the appellant’s motive. There is nothing in the trial judge’s chain of reasoning that is objectionable. It was not speculative. It was rooted in the evidence, taken as a whole.

(3) The Post-Offence Conduct was Relevant to the Appellant’s Intent

[18] The appellant concedes that the trial judge properly structured his analysis to address the three key issues in a murder trial: that the appellant caused the death of Ms. Ghirmay, that he caused her death unlawfully, and that he had the state of mind required for murder. The appellant does not contest the accuracy of these aspects of the trial judge’s self-instructions.

[19] However, the appellant submits that the trial judge erred in considering the appellant’s dismemberment and disposal of Ms. Ghirmay’s body as after-the-fact conduct evidence adequate to prove culpable intent. In particular, the appellant argues that the trial judge misapplied the proper legal test when he made this statement, at para. 190 of the judgment:

In my view, on the whole of the evidence, Mr. Zekarias' dismemberment of Ms. Ghirmay and his disposal of her remains is, on the basis of human experience and common sense, consistent with someone who unlawfully caused Ms. Ghirmay's death with the state of mind required for murder and inconsistent with any innocent explanation. For reasons I indicated earlier there is no evidence in this case that Mr. Zekarias somehow panicked or had a fear of false accusation when Ms. Ghirmay died from natural or other causes such as a drug overdose and then dismembered and disposed of her body. Such innocent explanations would be speculative and I reject them.

[20] The appellant submits that the proper test is not whether there is an “innocent explanation” but whether there are “alternative” explanations, and argues that the most obvious alternative explanation that the trial judge erred in not addressing was manslaughter.

[21] We reject this argument, because in his chain of reasoning building up to this conclusion, the trial judge addressed and dismissed the manslaughter alternative, at para. 186:

I accept that it does not follow that because some after-the-fact conduct is reasonably capable of supporting an inference supportive of the existence of the necessary intent for murder, that all after-the-fact conduct is relevant to that issue. There may be cases where the after-the-fact conduct is equally consistent with the accused having committed manslaughter as it is murder. In those cases, because the after-the-fact conduct does not make it more likely that murder was committed as opposed to manslaughter, it cannot be used as proof of intent to commit murder. See Peavoy, at para. 32. However that is not this case. [Emphasis added.]

[22] The trial judge added, at para. 188:

On the facts of this case, as in Teske where the body of the deceased was cremated, as a matter of common sense and human experience, it is reasonable to infer that someone, who has dismembered a body and disposed of their remains as Mr. Zekarias did in this case, did so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death. [Emphasis added.]

[23] The trial judge made similar observations at paras. 135, 165.

(4) The Charter Arguments

[24] The appellant argued in his factum that the trial judge erred in law in his rulings under the Canadian Charter of Rights and Freedoms on his applications to exclude from evidence physical items seized by the police from his apartment. The appellant’s submission that evidence should have been excluded is based on the following alleged breaches of the Charter: (1) breaches of his s. 8 rights as a result of a warrantless search of his apartment and the police looking through his mail slot before entering; (2) a breach of his s. 9 rights as a result of his unlawful arrest; (3) breaches of his ss. 10(a) and 10(b) rights when he was first detained; and (4) breaches of his ss. 10(a) and 10(b) rights when he was interviewed at the police station.

[25] The appellant advised the court at the outset of oral argument that he continued to assert his Charter rights, but added: “However, unless this court agrees with us that the trial judge erred with respect to either the motive evidence or the evidence of after the fact conduct, which formed the core of the reasoning process leading to conviction, the appellant concedes that the curative proviso would likely apply to the Charter evidence”. The appellant’s goal was to preserve these arguments should a new trial have been ordered.

[26] In view of the outcome and the appellant’s concession, we do not address the Charter arguments.

Disposition

[27] The conviction appeal is dismissed. We agree with the proposal made by counsel for the appellant and accepted by the respondent to adjourn the sentence appeal pending the outcome of the Supreme Court’s decision in Bissonnette c. R., 2020 QCCA 1585, 68 C.R. (7th) 1, leave to appeal granted, [2021] S.C.C.A. No. 26. So ordered.

“E.E. Gillese J.A.” “P. Lauwers J.A.” “David Brown J.A.”