



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. Semrets screams and came to her assistance, using his
    umbrella to strike the assailants hand, which was holding a large kitchen
    knife. The attacker fled the scene. However, much blood was left behind  blood
    that matched the appellants, and which could only be ruled out by an
    astronomical probability of coincidence. The blood was found on Ms. Semrets
    canvas bag (which was shredded during the attack) and on the umbrella wielded
    by Mr. Hughes. Crucially, the appellants DNA was found under Ms. Semrets
    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
    appellants 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, 59 to 510, with no
    facial hair. The police believed that the attacker walked with a limp. They
    issued a press release describing the suspect as white, 510 to 62. The appellant
    has brown skin, he is 57, often had facial hair, and did not walk with a
    limp.

[8]

An examination of the appellants computer revealed that, in the weeks following
    Ms. Semrets murder, he searched the internet about the case.

[9]

The appellants casts were removed on November 26, 2012. The appellants
    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. Semrets murder, and his association with her.

B.

analysis

[11]

At
    the appellants trial, the critical issue was the identification of Ms.
    Semrets 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 appellants 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
    appellants degree of culpability. Second, the trial judge erred in failing to
    warn the jury that it could not use the appellants 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 appellants 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 appellants 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. Semrets 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
OConnor
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 judges direction on the use to which the appellants purported
    falsehoods could be used. In her closing address, she urged the jury to use the
    appellants purported lies as indicative of his guilt.

[20]

The
    trial judge did not give an instruction that the jury could use the appellants
    false statements (if so found) as positive evidence of guilt only if there was
    independent evidence of concoction: see
R. v. OConnor
(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
OConnor
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
    appellants 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 appellants 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
    appellants serious hand and wrist injuries that were likely caused by sharp
    force trauma; the appellants 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
OConnor

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. Semrets 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 appellants 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.


