COURT FILE NO.:  01-037

DATE:  December 3, 2003








B E T W E E N:









Alex Smith and Trevor Jukes, for the Crown










- and -













David Gibson, for the Accused













HEARD:  October 6 – 10 and

                  December 1, 2003 in Kenora




The Honourable Mr. Justice P. B. Hambly










[1]          Justin Carambetsos is charged with manslaughter. He brings a pre-trial motion for leave to introduce evidence that Danny Favreau, rather than Justin Carambetsos, committed the offence.


[2]          Justin Carambetsos is charged with manslaughter on Max Kakegamic on October 4, 2000 in the city of Kenora. Maria Campenella lived at 223 ½ Matheson Street in the city of Kenora in an apartment on the second floor. At about 12:20 a.m. on October 4, 2000 she heard from her bedroom someone coming into the apartment. She phoned the accused who was working at Hap’s bar. He came to her residence. He found the intruder sitting in a chair in her living room. That man was Max Kakegamic. Carambetsos escorted Kakegamic down the stairs leading from the apartment onto the street. A number of witnesses observed portions of his activities on the sidewalk. At about 1:10 a.m. the police located Max Kakegamic in a space about 1 ½ feet in width between the end of the building adjacent to Maria Campenella’s apartment at Matheson Street and Third Street and a cement slab on which was mounted a green electrical box. The pathologist who conducted the autopsy concluded that he died as a result of a ruptured vertebral artery caused by a blow to the right side of his neck. On the right side of the deceased’s neck were fresh abrasions consisting of five parallel lines. They were consistent with having been caused by the toe of one of the accused’s boots. It is the theory of the crown that after the accused took Max Kakegamic onto the sidewalk that he kicked him in the neck, causing his death. He then deposited him where the police found him. The accused wishes to introduce evidence that Danny Favreau had the opportunity to commit the offence, that he was observed acting suspiciously where the offence took place and that he had a propensity to commit the kind of offence which resulted in the death of Max Kakegamic.

[3]          The accused was arrested at 8:00 a.m. on October 4, 2000. He was committed for trial after a preliminary hearing on June 29, 2001. He is to be tried by a court composed of a judge and a jury commencing January 12, 2004. Mr. D. Gibson represents the accused and Mr. T. Jukes and Mr. A. Smith represent the crown.

The Setting

[4]          Matheson Street runs north and south. Maria Campenella’s apartment is located north of Third Street on the east side of Matheson Street. Third Street runs east and west. It intersects with Matheson Street. Immediately to the north of Maria Campenella’s apartment is a laneway which makes a T-junction with Matheson Street. It runs east of Matheson Street between and parallel to Second Street and Third Street. Immediately to the north of the laneway is Second Street. It is one of two main streets in Kenora. It crosses Matheson Street. On the southeast corner of Matheson Street and Second Street is the Bizzi-Bee restaurant. Immediately to the west of the southwest corner of Matheson Street is an apartment building where Heather Gunn has an apartment on the second floor. The body of Max Kakegamic was found on the northeast corner of Matheson Street and Third Street. The Canadian Tire store is set back from the street on the southwest corner of Matheson Street and Third Street.


Evidence of Heather Gunn

[5]          Early on the morning of October 4, 2000, Heather Gunn went for a walk with her two dogs. She was standing with her dogs in front of the Canadian Tire store. She was located at a point on the west side of Matheson Street, south of the southwest corner of Matheson Street and Third Street. She observed a man on the east side of Matheson Street, north of Third Street, throw something at the location where the police found the body of Max Kakegamic. She made her observations at a point which could be described as “kitty corner” from where the events that she observed took place.

[6]          The man disappeared inside a door leading from Matheson Street to Maria Campenella’s apartment. Undoubtedly that man was Justin Carambetsos. She crossed the street. She observed the body of Max Kakegamic on the ground. She went home. She looked out the back window of her apartment from which she could see the east side of Matheson Street. She observed a man walking north on Matheson Street whom she has identified as Danny Favreau. She phoned her niece, Lydia Harlos, and told her what had happened. She told Lydia Harlos that she had seen Danny Favreau in the area. Lydia Harlos phoned the police. The police interviewed her shortly thereafter on the morning of October 4, 2000. She directed them to the apartment of Heather Gunn. Lydia Harlos told the police that Heather Gunn said that Danny Favreau was in the area. Lydia Harlos phoned Heather Gunn and told her that the police were coming. Heather Gunn returned to the place where she had discovered the body of Max Kakegamic. She said that she thought that the body had been moved from where she first saw it and that the pockets had been turned out. She concluded from this that the body had been robbed. Immediately after Heather Gunn returned to the body, two patrol officers arrived. They pulled the body out from where they discovered it and attempted to revive it. Their attempts were futile. Max Kakegamic was dead.

[7]          Heather Gunn gave a number of statements of what she saw. Cst. White and Sgt. Favreau interviewed her in the early morning hours of October 4, 2000. Sgt. Favreau said that she told him that the man that she saw going through the door leading to Maria Campenella’s apartment was Danny Favreau. Sgt. Favreau said that he concluded that she must have been mistaken after he interviewed Maria Campenella. Cst. White took a videotaped statement from Heather Gunn on October 6, 2000. She stated the following recorded at pages 27 – 29 of the transcript:

White:    Right, okay. Um…did you see anybody else on the street that night?

Gunn:     The only person I saw, was the guy with the white p…hat like I told Mr…. Mr. Favreau.

White:    Right.

Gunn:     Had a white peaked hat on and he went down… I can’t say he did anything either because…you know.

White:    Which way was this guy going?

Gunn:     He…he…he walked down and he came back and he kept turning like…kept turning his head.

White:    Okay. Which way was he, which way was he started walking like?

Gunn:     Um…he went down, like down to the body. I thought he was going down that way and then like, looked back he was going toward Buzzi-Bee.

White:    Okay.

Gunn:     And he had a white peaked hat on that night…so like I said…(unintelligible). Just turn around and to stay out of it (unintelligible)… you know. And I said to myself, “That doesn’t look right.” So…I just (unintelligible)… just like I told you.


[8]          At the preliminary hearing on June 27, 2001, she stated the following at pages 59 - 62:

Mr. Gibson:      Q: And you walk out your back door and you see a young person with a white peak cap?

Heather Gunn:  A: Yeah.

Q:   Okay. Now, you think that person was Danny Favreau?

A:    Yeah, I thought it was.

Q:   But you don’t think that now?

A:    I don’t know who it was. I say it could of been Danny because I’ve seen Danny around at that, that time of night, quite a few times. There’s lots of them out there that time of night.

Q:   You know Danny Favreau pretty well though, right?

A:    Not, not as much as I know, you, no.

Q:   You’ve seen Mr. Favreau…

A:    Yeah, I’ve seen him, seen him but not…

Q:   …often around town?

A:    I haven’t seen him lately at all.

Q:   Okay, but prior to this night…

A:    Yeah, prior to that night, I thought, I thought it had been him.

Q:   You thought it had been him?

A:    Yeah.

Q:   Why did you think it was him?

A:    Well, just the way he walks, he has a funny walk.

Q:   And this person that you saw with the white peak cap, had that funny walk?

A:    Yeah.

Q:   And you’re standing in the back---is this a parking lot area, back here?

A:    Yeah, hmmm…hmmm…

The Court:        Indicating the area behind her residence?

Mr. Gibson:      Correct. Q: Now, this individual with the white peak cap was walking toward Bizzi-Bee…

A:    Yeah.

Q:    ,,,is that correct?

A:    Right, yeah.

Q:    Coming from the area where you had seen the body?

A:    Yeah, and then he just ran back.

Q:    He ran back?

A:    Yeah, like he was running more, more to, up to Bizzi-Bee and he kept turning his head all the time.

Q:    The, the individual you thought was Danny Favreau…

A:    Yeah.

Q:    …in the white peak cap…

A:    Yeah.

Q:    …was running towards Bizzi-Bee…

A:    Yeah.

Q:    …looking over his shoulder?

A:    Yeah.

Q:    Back towards…

A:    Yeah.

Q:    …the place where you knew the person was lying…

A:    Yeah.

Q:    …on the street?

A:    Right.

Q:    And you were standing behind your residence watching…

A:    Watching.

Q:    …this, this person…

A:    Waiting for the police…

Q:    …going up the street?

A:    …in the meantime, to come.

Q:    Right. And do you see where the individual in the white peak cap goes, eventually?

A:    No, I didn’t.

Q:    And what do you do after you see this person leave your visual…

A:    He just left. I guess he went home, or around the corner or wherever.


[9]          On August 26, 2003 Cst. K. Warren and Cst. D. Cunningham took a videotaped statement from Heather Gunn. She stated the following, recorded at page 29 of the transcript:

KW:    Okay…uhhmm now when you look out your bedroom window how much can you see out there?

HG:      You can’t see very much. You can’t see where the accident was. You…I couldn’t do that but I could see if anyone was walking back and forth. And the only person I saw walk back was Danny.

KW:    Okay.

HG:      That’s what I…I…uhh of course should not have said the person’s name because they are related to…is related to Donny… er Tom Favreau and I think Trevor…if I can recall right. Trevor came out and he said to Tom you’d better get you book in straight order because there is something not connecting here.

KW:    Okay…now how do you now (know) Danny Favreau?

HG:      He used to…we used to go… the whole lot of us used to go out for coffee and he was one of them and he can be an idiot when he wants to and that’s how I knew.


[10]      Clearly Heather Gunn is suggesting that as a result of what she knew about Danny Favreau, of seeing him acting suspiciously after she left the body, and her observations of the body having been moved and the pockets turned out before the police came, that she believed that Danny Favreau attempted to rob the body.


Evidence accused seeks to introduce

[11]      Danny Favreau was born on October 20, 1978. On October 4, 2000, he was 17 days short of his 22nd birthday. He has a substantial criminal record for theft and assault.

[12]      Michelle Boucher gave evidence on the motion. Commencing in September, 1999, she lived with Glen Wood in an apartment above the Bizzi-Bee. In April, 2000, they moved to Red Lake. Glen Wood and Danny Favreau were friends. For a period of time Danny Favreau lived with Glen Wood and Michelle Boucher above the Bizzi-Bee. One evening in the fall of 1999, Michelle Boucher, Glenn Wood and Danny Favreau went drinking at the local bars in Kenora. In the early morning hours, Michelle Boucher was returning to her apartment with Danny Favreau. A native male with ragged clothes was passed out in the laneway that runs between and parallel to Second Street and Third Street. Danny Favreau started to kick this man in his legs and upper body. He ignored Michelle Boucher’s screams to stop. She went to her apartment. About ten to fifteen minutes later Danny Favreau came into the apartment. He was laughing and giggling. He said that he took the man’s money. Earlier in the evening Danny Favreau did not have money. When he returned to the apartment he had drugs and alcohol in his possession.

[13]      On November 19, 2001, Danny Favreau pled guilty in Thunder Bay in Provincial Court to a charge of sexual assault on September 11, 2001. On that day, Favreau and another man went to a local bar where they consumed alcohol. They returned to a room which they shared in a motel. The man went to sleep. About two hours later he was awakened by Favreau attempting to insert something into a bodily orifice. He did not consent to Favreau doing this. He protested. He later phoned the police. As a result of his complaint, the police charged Danny Favreau with sexual assault.

[14]      On October 13, 2000, Cst. Ratchford interviewed Danny Favreau. He took the following statement from him:

Q:   The Kenora Police are investigating the death of Max Kakegamic. The body of Max Kakegamic was discovered lying on the ground beside the Calypso Hair Fashions building on the corner of Matheson Street South and Third Street South in Kenora on October 4, 2000. What can you tell me of this matter?

A:    I was in Winnipeg visiting. I went up with Glen Wood and Michelle Boucher. I wasn’t in town that night.

Q:   Where can I find Glen Wood and Michelle Boucher?

A:    I’ve got the number where they stay. It’s in Red Lake. The number if 807-727-3402.

Q:   Is there anything else you want to add?

A:    No.


[15]      Michelle Boucher testified that she and Glen Wood were living in Red Lake in October, 2000. They went to Winnipeg on Friday, October 6th. On their way to Winnipeg, they stopped in Kenora. They met Danny Favreau. He went with them to Winnipeg. He stayed with them at the St. Regis Hotel in Winnipeg. He came back with them to Kenora on Monday, October 9. Michelle Boucher gave evidence that she was certain that she was not in Winnipeg with Glen Wood and Danny Favreau on Wednesday, October 4. On this night, she won $3,000 playing bingo. She used this money to go to Winnipeg on Friday, October 6.

[16]      Molly Ann Paquin also gave evidence on the motion. She was the manager of the St. Regis Hotel. She provided documents to confirm that Michelle Boucher rented a room for two adults at the hotel between October 6 and October 9.

[17]      This evidence contradicts the statement of Danny Favreau to Cst. Ratchford that he was with Michelle Boucher in Winnipeg on October 4, 2000.

[18]      In summary, the defence wishes to call the following evidence:

a)             The testimony of Michelle Boucher that she witnesses Dan Favreau in the fall of 1999 commit an unprovoked assault on an unconscious aboriginal male near the same location where Max Kakegamic was found dead;

b)             Dan Favreau’s criminal record for theft and the transcript of his conviction for sexual assault;

c)             The statement of Dan Favreau dated October 13, 2000 taken by Cst. Ratchford;

d)             The testimony of Michelle Boucher that Dan Favreau was not with her in Winnipeg on October 4, 2000 as he alleged in his statement to Cst. Ratchford;

e)             The testimony of Molly Ann Paquin that she worked at the St. Regis Hotel at the material time and, after reviewing her records, she has documentary confirmation that Michelle Boucher stayed at the St. Regis Hotel October 6, 2000 to October 9, 2000 as she testified.


The law on other suspects

[19]      The accused may lead evidence that a third party had a propensity to commit the crime of which he is charged to support the proposition that he, rather than the accused, committed the crime. There must be evidence linking the third party to the crime. In R. v. McMillan,[1] Justice Martin expressed the concept as follows at page 167:

“I take it to be self evident that if A is charged with the murder of X, then A is entitled by way of defence, to adduce evidence to prove that B., not A, murdered X. A may prove that B murdered X either by direct or circumstantial evidence.

“Evidence that a third person had a motive to commit the murder with which the accused is charged or made threats against the deceased is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value: see Wigmore on Evidence, ibid., pp. 573-6.

“The tendency or disposition of a person to do a certain act is relevant to indicate the probability of his doing or not doing the act.”

and at page 168:

“Obviously, unless the third person is connected with he crime under consideration by other circumstances, evidence of such person’s disposition to commit the offence is inadmissible on the grounds of lack of probative value. For example, if A is charged with murdering X, in the absence of some nexus with the alleged offence, evidence that B has a propensity or disposition for violence, by itself, is inadmissible to prove B is the murderer because standing alone it has no probative value with respect to the probability of B having committed the offence. If, however, it is proved that A, B and X all lived in the same house when X was killed, and that B had a motive to kill X, then evidence that B had a propensity for violence, may have probative value on the issue whether B, and not A, killed X, and is accordingly admissible.”


[20]      The evidence of necessity linking the accused to the crime is emphasized by Justice MacPherson in R. v. Shchavinsky and Yashnev,[2] as follows at para. 45:

The trial judge reviewed McMillan, Arcangioli and other authorities and said:

These cases state that before such evidence can be proffered there must be a link between the third party suspect and the crime charged. Such a link, in my view, must be evidentially based, rather than simply motive based.

In my view, this statement of legal principle flowing from the case law is correct.


[21]      The approach that the court must follow in dealing with the admission of defence evidence was explained by Justice McLaughlin in R. v. Seaboyer[3] as follows at p. 391:

“The Canadian cases cited above all pertain to evidence tendered by the crown against the accused. The question arises whether the same power to exclude exists with respect to defence evidence. Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.”

and at p. 408

“…assess with a high degree of sensitivity whether the evidence proffered by the defence meets the test of demonstrating a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence … the trial judge must ensure that evidence is tendered for a legitimate purpose, and that it logically supports a defence.”


[22]      In R. v. McMillan (supra), the accused was charged with the murder of his infant child. The accused and his wife brought the child to hospital. The infant had injuries from which it later died. Justice Martin held that expert evidence that the wife had a psychopathic personality and personality traits which made her a suspect for injuring the child and causing its death was properly admitted. Evidence that the wife said that she did not want the child provided the nexus that made the propensity evidence admissible.

[23]      In R. v. Baltrusaitis[4], the accused was charged with the murder of his brother. He was shot six times with a shotgun in his living room. Justice O’Connor found that evidence of “…the stormy separation between the deceased and his wife, her alleged prior attacks on him, his fear of her, together with her knowledge of his movements, her access to the family home and their meeting possibly a few hours before his death are sufficient to meet the threshold of ‘other suspect’ status.” (p. 2)

[24]      In R. v. Badgerow[5] the accused was charged with the murder of a young woman whose body was found in a ravine. She had been sexually assaulted. The accused’s semen was found on the body of the deceased. Brian Miller lived in the same apartment building as the deceased. Three days after the murder, the police received an anonymous telephone call from a person who appeared to know facts about the case that only the perpetrator could know. A friend of Miller thought that the voice on the tape sounded like the voice of his friend. Miller accumulated a lengthy criminal record for sexual assault after the murder. The police interviewed Brian Miller in the penitentiary. The officer who played the tape for him to listen noted that “his face turned red and his entire face quivered.” Justice Lofchik found that the evidence connecting Miller to the anonymous telephone call provided the nexus to the offence which made evidence of his propensity to commit sexual assault sufficient to justify its admission as other suspect evidence.

[25]      In R. v. Shchavinski and Yashnev (supra), the two accused, the deceased and a man named Tchaptsov who the defence wished to call to give evidence of another suspect were Russians. The proposed other suspect was a man named Klebner. The sum of $500,000 was transferred from Klebner’s account by a complicated series of transactions to a bank account in Florida. Out of this bank account, $40,000 was transferred to the bank of account of the deceased, Makhno. Makhno used this money to purchase an Acura motor vehicle in Hamilton, Ontario where he lived. Shortly after doing this he was murdered. There was evidence that Shchavinski and Yashnev after the murder had possession of the car and cooperated in shipping the Acura to Russia to be sold. The theory of the crown was that they murdered the deceased to acquire his car. There was no evidence linking Klebner, who was admittedly the source of the money to buy the car to the theft of the car after the murder. The trial judge refused an application by the accused to introduce evidence of this man’s role in the transfer of the money to the deceased’s bank account, to support the proposition that he was a viable other suspect in the murder. The trial judge found no evidence linking this man to the murder. Justice MacPherson delivered the judgment of the Court of Appeal upholding the ruling of the trial judge.

[26]      In R. v. Williams[6], the accused was charged with arson by setting her house on fire. She sought to introduce evidence that a neighbour had confessed to her and to others that he had set the fire to her house and to other houses in the neighbourhood. The neighbour was called and denied setting the fires and making the confessions. There was a lack of independent evidence linking him to the offence. The trial judge refused to allow him to be cross examined as an adverse witness or to admit the alleged confessions as exception to the hearsay rule. The ruling was upheld in the Court of Appeal.

[27]      In R. v. Coutts and Middleton[7], Justice Doherty drew a distinction between statements of an accused that are disbelieved which cannot be used as circumstantial evidence of guilt, and statements of an accused which are found to be concocted that can be used as circumstantial evidence of guilt. This is necessary to maintain the onus on the crown to prove the guilt of the accused beyond a reasonable doubt. Justice Doherty acknowledged that the distinction and the significance of a statement that is disbelieved as opposed to a statement that is concocted is illogical. He stated the following at par. 15:

“This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a matter of pure logic. In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.”

[28]      I agree with the submission of Mr. Gibson that this distinction need not be made in assessing the legal significance of a statement of a witness that is disbelieved.



[29]      The evidence sought to be introduced by the accused is evidence of propensity of Danny Favreau to commit assault on a helpless male person and to rob him. This is relevant evidence to support Danny Favreau being an alternative suspect, if there is other evidence independent of this evidence linking him to the offence.

[30]      Heather Gunn stated that before the police arrived the body had been moved and the pockets turned out as if it had been robbed. She stated that Danny Favreau walked toward the location where she had seen the body, and then ran towards the Bizzi-Bee and that he kept turning his head back towards the body. Danny Favreau gave a statement to Cst. Ratchford that he was in Winnipeg on the morning of the homicide. This is contradicted by the evidence of Michelle Boucher. The jury may wish to use this evidence as circumstantial evidence that Danny Favreau knew that he was implicated in the death of Max Kakegamic.

[31]      I find that there is evidence, independent of the propensity evidence, sufficiently connecting Danny Favreau to the offence to make the propensity evidence admissible, subject to a weighing of the prejudicial effect against the probative value of the evidence as required by Seaboyer.

[32]      Michelle Boucher has a substantial criminal record. She is a recovering alcoholic. She showed some confusion recalling the sequence of events and the dates when events happened. The crown will challenge the reliability and credibility of her evidence. Her recollection of when she was in Winnipeg is corroborated by the documents produced by Molly Ann Paquin. The criminal record of Danny Favreau, the transcript of Danny Favreau’s guilty plea and the October 13, 2000 statement of Danny Favreau to the police are documents which can be filed. I agree with Mr. Gibson that the propensity evidence which he seeks to adduce should take no longer and probably substantially less time than one day to introduce.

[33]      Mr. Smith argues that the prejudice to the crown is the proposition that Danny Favreau kicked Max Kakegamic in the neck during an attempted robbery on a lifeless body and thereby caused his death by rupturing a vertebral artery is pure speculation, incapable of raising a reasonable doubt. He refers to the passage in the suggested jury charge in R. v. Lifchus[8], at page 14 as follows:

“A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.”


[34]      This definition of reasonable doubt was not changed by the recommendation in R. v. Starr[9] that a jury be told that the reasonable doubt standard falls much closer to absolute certainty than proof on a balance of probabilities.

[35]      Mr. Smith may be right. However in my view that is for the jury to decide. I expect that I will charge the jury in accordance with Lifchus and Starr. The crown will have full opportunity to submit to the jury that the evidence supporting the proposition that Danny Favreau causing the death of Max Kakegamic cannot raise a reasonable doubt, as that term is defined in law.



[36]      The evidence sought to be introduced by the defence will be admitted to support the proposition that Danny Favreau is an alternative other suspect in having caused the death of Max Kakegamic.



Justice P. B. Hambly



Released:       December 3, 2003


COURT FILE NO.:  01-037

DATE:  December 3, 2003







B E T W E E N:





-          and –













Justice P. B. Hambly



Released:       December 3, 2003

[1] R. v. McMillan (1975), 23 C.C.C. (2d) 160 (Ont. C.A.); affd (1977), 33 C.C.C. (2d) 360 (S.C.C.)

[2] R. v. Shchavinski and Yashnev, (2000) 148 C.C.C. (3d) 400 (Ont. C.A.)

[3] R. v. Seaboyer (1991), 61 C.C.C. (3d) 321 (SCC) at 391

[4] R. v. Baltrusaitis [1996] O.J. No. 2001 (Ont. S.C.J.); appeal allowed on other grounds (2002), 162, C.C.C. (3d) 539 (Ont. C.A.)

[5] R. v. Badgerow [2000] O.J. No. 5438 (S.C.J.)

[6] R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.)

[7] R. v. Coutts and Middleton (1998) 126 C.C.C. (3d) 545 (Ont. C.A.)

[8] R. v. Lifchus, (1997) 188 C.C.C. (3d) 1 (S.C.C.)

[9] R. v. Starr, (2000) 147 C.C.C. (3d) 449 (S.C.C.)