



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Thibeault, 2018 ONCA 876

DATE: 20181101

DOCKET: C62907

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zacharias Thibeault

Appellant

Dirk Derstine and David Parry, for the appellant

Randy Schwartz, for the respondent

Heard: October 22, 2018

On appeal from the conviction entered by Justice Harrison
    S. Arrell of the Superior Court of Justice, sitting with a jury, on October 28,
    2015.

REASONS FOR DECISION

[1]

The appellant appeals his
    conviction for the second degree murder of Kadar Omar.

[2]

The deceased, a known drug dealer,
    was found dead in his Hamilton apartment at around 7 p.m. on March 30, 2013. He
    was last seen alive at a Tim Hortons near his home at around 4 p.m. on March
    29, 2013. He had suffered blunt force trauma to the head and multiple stab
    wounds to his face and neck, some of which were superficial. The immediate cause
    of death was blood loss due to multiple stab wounds; the blunt force injuries also
    contributed to the death.

[3]

In addition to contentious
    evidence of a confession from a witness subject to both
Vetrovec
and
Titus
cautions, the Crown relied on significant circumstantial evidence to
    support its case, including:

·

evidence that the appellant and the deceased were connected -
    they had been friends for several years and the deceased was the appellant's
    drug dealer;

·

evidence that although the deceased had recently moved, the
    appellant  knew where he lived and had been to his home;

·

evidence that the appellant was in need of money immediately
    before the killing and evidence that the deceased was carrying a substantial
    quantity of cash prior to his death;

·

evidence that the appellant had sent threatening text messages to
    the deceased about two weeks before the killing, complaining that the deceased
    had ripped him off in a drug deal;

·

evidence that the appellant had turned off his cell phone between
    approximately 11 a.m. and 11 p.m. on March 29, 2013;

·

evidence that the appellant was in possession of the deceased's
    stolen belongings, including clothing, a PlayStation and a significant quantity
    of cash around 8 to 9 p.m. on March 29, 2013.

[4]

The appellant raises three main
    issues on appeal.

[5]

First, the appellant argues that,
    having made a pre-trial ruling permitting the appellant to lead alternate
    suspect evidence, the trial judge erred in excluding as hearsay what the
    appellant submits was key evidence relating to his alternate suspect theory. Further,
    the appellant submits that the trial judge erred in then holding there was no
    air of reality to the alternate suspect theory and withdrawing it from the
    jury's consideration.

[6]

The Crown concedes and we agree
    that the trial judge erred in ruling inadmissible the evidence of certain
    witnesses concerning inconsistent explanations by the alternate suspect for a
    cut on his hand. The purpose of the evidence was not to establish the truth of
    the explanations, but rather to show that the alternate suspect had provided
    inconsistent explanations. That purpose did not contravene the hearsay rule
    against leading evidence of out-of-court statements to prove the truth of their
    content.

[7]

Nonetheless, we reject this
    submission. The pre-trial alternate suspect ruling assumed that the appellant
    would marshal evidence at trial showing, among other things, that the deceased
    and the alternate suspect were acquainted with each other, and some realistic
    basis derived from police information or cell phone evidence concerning the
    alternate suspect or his whereabouts at the approximate time of the deceased's
    death to connect the alternate suspect to the killing. This evidence did not
    materialize at trial.

[8]

In particular, there was no
    evidence at trial that the deceased and the alternate suspect knew each other,
    had ever met or had even crossed paths. Cell phone records positively
    established they had not been in communication in the months leading up to the
    victim's death. There was no evidence of motive,
animus
or propensity on the part of the alternate suspect.
    Anticipated evidence that the alternate suspect was aware of information held
    back by the police did not materialize.

[9]

Further, the evidence relied upon
    by the defence failed to establish any realistic connection between the
    alternate suspect and the deceased or the murder. Evidence that the alternate
    suspect had recently acquired a watch that looked something like the deceased's
    missing watch contained no trace of the deceased's DNA and was not identified
    by the deceased's long-time girlfriend as being the deceased's watch. Evidence
    from a friend that the alternate suspect was acting paranoid following the
    murder was limited to one occasion about a week after the murder and happened after
    the alternate suspect had been using cocaine.

[10]

The evidence also failed to
    establish a realistic opportunity for the alternate suspect to have committed
    the murder. Cell phone evidence placed the alternate suspect in the vicinity of
    the deceased only as of 12:30 a.m. on March 30, 2013, which was hours after the
    appellant was seen wearing the deceaseds clothing and with his belongings.
    Moreover, the cell phone evidence indicated the alternate suspect was busy
    texting much of the time.

[11]

Second, the appellant argues that
    the trial judge erred in permitting the Crown to adduce evidence of the threatening
    text messages from the appellant to the deceased and further erred in failing
    to caution the jury against improper use of the text messages. We reject this
    submission.

[12]

The trial judges ruling that the
    probative value of this evidence exceeded its potential for prejudice is
    subject to deference on appeal:
R. v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 364, at para 255,
    leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 17. Given that the
    messages supported inferences of animus and motive we see no basis on which to
    interfere with the trial judges conclusion that the probative value of this
    evidence exceeded its potential for prejudice. No request to edit the messages
    was made to the trial judge. Where evidence of threats against a victim are
    admissible on the issue of motive, it is not necessary that the trial judge
    caution the jury against propensity reasoning:
R. v. Merz
(1999), 46 O.R. (3d) 161 (C.A.) at paras. 57 - 59,
    leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 240.

[13]

Third, the appellant argues that
    the trial judge erred in failing to leave the lesser included offence of
    manslaughter with the jury. We do not accept this submission.

[14]

The deceased suffered six stab
    wounds to the neck; multiple incised wounds to the neck and face; a penetrating
    stab wound to the neck that severed the jugular vein and carotid artery;
    multiple sharp force injuries to the arms and legs; and multiple blunt force
    injuries to the head and neck. Furthermore, all ten of the deceaseds fingers
    were amputated. Even without the penetrating neck wound, the multiple sharp
    force injuries and blunt force injuries would have contributed to death. Having
    regard to these injuries, there was no air of reality to the theory that the
    perpetrator did not have one of the necessary intents for second degree murder.
    Further, the defence theory that the appellant merely robbed the deceased who
    was killed by a co-perpetrator was speculative. The trial judge did not err in
    concluding that manslaughter was not an available verdict.

[15]

We reject the grounds of appeal
    raised by the appellant. The appeal is dismissed.

Janet
    Simmons J.A.

R.G.
    Juriansz J.A.

M.L.
    Benotto J.A.


