HIS MAJESTY THE KING - v. -, 2023 SKKB 158

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 158 Date: 2023 07 27 Docket: CRM-RG-00211-2021; CRM-RG-00214-2021 Judicial Centre : Regina BETWEEN: HIS MAJESTY THE KING - and - JOSEPH THAUBERGER Counsel: Adam Breker and Andrew Campbell for the Crown Tyne Hagey for the accused TRIAL DECISION McMURTRY J. JULY 27, 2023 [ 1 ] Joseph Thauberger faces charges of first degree murder and interference with human remains. The charges read as follows: Count 1: On or about the 3 rd day of September, 1997, at or near Regina, Saskatchewan , did unlawfully cause the death of Patrick Cyril Thauberger and did thereby commit first degree murder, contrary to

section 235 of the Criminal Code ; and Count 2: On or about the 3 rd day of September, 1997, at or near Regina, Saskatchewan, did indecently offer an indignity to the human remains of Patrick Cyril Thauberger, contrary to

section 182 (

b) of the Criminal Code . [ 2 ] Between March 6 and 17, 2023, a voir dire was held to determine the admissibility at trial of evidence of a covert police operation [Project Thau], and of a warned statement by the accused to police.

In my May 5, 2023 decision on the voir dire , I decided as follows: [82] I am satisfied that the evidence of Project Thau, called by the Crown on the voir dire , should be admitted at trial, save exceptions agreed to by counsel, or as determined by me. [ 3 ] With the decision to admit the evidence of Project Thau, the defence withdrew its objection to the admissibility of the warned statement.

I confirm my finding during the trial that the statement was voluntary. [ 4 ] The Crown entered into evidence at trial an Agreed Statement of Facts for Trial as Exhibit P-1 in accordance with s. 655 of the Criminal Code , RSC 1985, c C-46 . It is attached to this decision as

Schedule “A”. The Offence of Murder

[5] Joseph Thauberger [accused] is charged with first degree murder. The offence of murder is defined in s.222(4) of the Criminal Code as culpable homicide. Culpable homicide is murder under s. 229 of the Criminal Code, in the followingcircumstances: Murder 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; [6] Subsection 231(1) of the Criminal Code defines murder as first degree murder or second degree murder.Subsection 231(2) provides that murder is first degree murder when it is planned and deliberate.

On a charge of murder that is plannedand deliberate, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1. that the accused committed an unlawful act; 2. that the accused’s unlawful act caused Patrick Thauberger’s death; 3. that the accused had the intent required for murder; and 4. that the accused’s murder of Patrick Thauberger was both planned and deliberate. (CJC Model Jury Instructions, Offence 231(2): First Degree Murder (Planned and Deliberate)) [7] The following excerpt from R v Robinson, 2017 ONCA 645 at para 34, 352 CCC (3d) 503 [Robinson]describes planned and deliberate murder: [34] A murder is planned if it is the product of “a calculated scheme or design which has been carefully thought out, and the natureand consequences of which have been considered and weighed”.

A murder is “deliberate” if it is “‘considered,’ ‘not impulsive’ …implying that the accused must take time to weigh the advantages and disadvantages of his intended action”: R. v. Widdifield (1961), 6Crim. L.Q. 152 (Ont. H.C.), per Gale J.; and R. v. Nygaard, (SCC), [1989] 2 S.C.R. 1074, at p. 1084. Murder, as definedin either s. 229(a)(

i) or s. 229(a)(ii), can be planned and deliberate: R. v. Banwait, 2010 ONCA 869, 265 C.C.C. (3d) 201, at paras. 59-64, rev’d, but not on this issue, 2011 SCC 55, [2011] 3 S.C.R. 533. The Offence of Offering an Indignity to Human Remains [8] The offence of offering an indignity to human remains is defined in s. 182(

b) of the Criminal Code.

Section 182(

b) reads: Dead body 182 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of anoffence punishable on

summary conviction who … (

b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not. [9] In R v Caissie, 2019 SKQB 3 [Caissie], Danyliuk J. discussed the elements of the offence of in s. 182(b): [120] The second charge in the indictment is that the accused offered an indignity to the human remains of Carol King by disposing ofher body in a treed area contrary to s. 182(

b) of the Criminal Code. [121] To obtain a verdict of guilty on this charge the Crown must prove each of the following essential elements of that charge: 1. The identity of the accused. 2. The date, time and place of the offence as set out in the indictment. 3. The accused knew the body was dead. 4. The accused interfered with a dead human body or human remains. 5. The interference was improper or indecent. 6. The accused intended to improperly or indecently interfere with a dead body or human remains. See R v Hubley, 2017 NSSC 44. There is no requirement for proof of physical interference with a dead body or human remains: R vMoyer, (SCC), [1994] 2 SCR 899.

[ 10 ] In Caissie , Danyliuk J. found the accused guilty of an offence under s. 182(

b) and explained his reasons as follows: [252] This charge requires little debate or analysis. By coldly disposing of her body in some bush in an abandoned farmyard Mr. Caissie managed to heap further indignity upon Ms. King, even after he had murdered her. By disposing of her outdoors, in August weather in Saskatchewan, Mr. Caissie knew (or ought to have known) that her body would not be swiftly found, that decomposition would occur rapidly, and that insects and animals would further ravage Ms. King’s body. This was an additional callous act.

The Evidence at Trial on the Charge of Murder [ 11 ] The Crown’s case is centred on statements made by the accused to Cliff, an undercover police officer, that he murdered his brother Patrick Cyril Thauberger [Patrick] on September 3, 1997, and had planned to do so. [ 12 ] The defence’s case is centred on the accused’s testimony at trial that Patrick’s death was an accident.

He testified that Patrick fell down the stairs between the second and first floors of the accused’s house, on September 3, 1997, and died shortly thereafter. [ 13 ] My role is to determine whether the Crown has proved the accused murdered Patrick beyond a reasonable doubt, and whether that murder was planned and deliberate. Evidence of Barbara Hayes [ 14 ] Barbara Hayes [Barbara] is the accused’s former wife.

In my view, she sets the stage for the events of September 3, 1997. [ 15 ] Barbara testified she saw Patrick arrive at the home she shared with the accused, at approximately 11:00 a.m. on September 3, 1997, with a third Thauberger brother, James [Jim]. [ 16 ] Barbara testified she was in the basement when they arrived, where she runs a preschool, with five toddlers. From a basement window, she saw Jim leave and the accused and Patrick move towards the house. Mid-morning, Barbara went upstairs to the kitchen and saw Patrick sitting on a couch in the living room, seemingly fine. He waved and said “hi”.

She responded in kind and returned downstairs with whatever she had come up to get. Barbara did not see Patrick again. [ 17 ] When the children were eating lunch downstairs, at approximately 12:30 p.m., Barbara heard a tremendous crash. She testified it sounded like an elephant was coming through the ceiling. She heard only one crash. She and the children looked up at the ceiling because it sounded like the noise came from just above their heads. [ 18 ] Barbara testified she heard Patrick say “no, no, no”, in a pleading tone. She did not hear anything after that.

Barbara said the “no, no, no” sounded like “real distress”. [ 19 ] Barbara ran up the basement stairs, but the door at the top of the stairs leading to the kitchen was locked. She knocked or pounded on the door. She said “what have you done” to the accused and he answered by telling her to go back downstairs. He sounded as if he was straining at the time. Barbara estimated that one to one and a half minutes passed between hearing “no, no, no” and her conversation with the accused.

Barbara sat at the top of the stairs for a while and then returned to the children. [ 20 ] Barbara testified she does not remember the afternoon, but likely the children were gone by 5:30 p.m. She remained downstairs. After it was dark outside, the accused appeared at the top of the stairs and asked her to help him move “him”. She said she refused because she “couldn’t do it”. The accused was dressed in rubber boots and a plaid jacket as if he was going to the farm. There is no dispute that it was now 8:30 or 9:00 at night. [ 21 ] Barbara testified she heard the accused move vehicles in the driveway.

She went upstairs to ensure he did not hit the railing outside. She returned downstairs. She saw the accused drag a rolled-up, blue carpet from the top of the stairs outside and heard the carpet thudding as it was dragged down the outside steps. [ 22 ] Barbara stayed downstairs until an hour after the accused left. She said she entered the kitchen and saw black heel marks near the doorway leading from the kitchen to the hallway and a gouge on one of the kitchen cupboard doors under the sink.

She also saw a drop of blood on the ceiling, above the end of the cupboards, to the right of the sink. [ 23 ] Barbara testified that the stairs going from the basement to the first floor are directly below the stairs from the first to the second floor. She believed the sound of the crash came from the hallway by the kitchen on the first floor. She also thought that the sound could have come from the kitchen itself but that may be because of the gouge in the cupboard and the location of the black heel marks. [ 24 ] Barbara does not know when the accused returned to the house.

The next thing she remembers is being in the kitchen with him, the next day, or several days later. She asked the accused how he could do what he did. He responded something like, “I’m proud of what I did, … I put down a sick dog”. Barbara said she asked him what he did to Patrick and the accused answered, “when you run over someone with a tractor, there’s nothing left”. Barbara testified she was horrified, and her “brain shut down”.

She has no memory of events thereafter until she received a cancer diagnosis more than two years later. [ 25 ] Barbara was married to the accused in June 1992, and they separated in November 2010. Although separated, in 2011, she accompanied the accused to his daughter’s wedding. On the way home in his car, the accused told her that if he ever went to jail because of her, he would kill her and if he could not do it, he had people who could. Barbara said she last saw the accused five years before the trial at his sister’s funeral.

[ 26 ] Barbara testified that she had an excellent relationship with the accused’s family. She thought the accused and Patrick were best friends and owned property together. She testified that she understood Patrick put up most of the money for the farmland and the accused did the physical farm work. She said the accused was very private about business matters and did not like to have property in his name. Barbara was aware that the accused put property in her name – a gravel pit, a house, the truck used to transport Patrick’s body, and a piece of land.

After their divorce, he asked her to transfer the property to his children, which she did. [ 27 ] Barbara testified the accused told her Patrick wanted to sell land in September 1997. Barbara testified that Patrick seemed paranoid. The accused described it as a problem he would have to resolve. [ 28 ] Barbara never spoke of her knowledge of the death of Patrick, except to a priest. She also wrote a letter to her lawyer after the accused threatened her on the car trip in 2011. She wrote a second letter to her lawyer in 2014.

Barbara said she kept quiet about Patrick’s death because she was afraid of the accused. [ 29 ] When Barbara first spoke to the police on November 29, 2020, she had no knowledge of Project Thau, or of the accused’s statements to Cliff. She knew only that the accused had been arrested for murder and she was under arrest for assisting him. [ 30 ] Barbara’s evidence was compelling and believable. She acknowledged errors in her recollection, for instance on the size of the gouge in the kitchen cupboard.

She was conscious of the time that has passed since she witnessed these events, but she said she has thought about them every day since they happened. She was clearly terrified of the accused. Significantly, Barbara’s testimony was never contradicted on any matter of substance, except by the accused. Evidence of James Thauberger, the accused’s brother [ 31 ] Jim was another careful, believable witness.

He too gives context to September 3, 1997 and to the relationship between his deceased brother Patrick and his other brother the accused. [ 32 ] Jim testified that he and his siblings grew up on a farm 28 miles east of Regina, Saskatchewan. At that time, he and the accused had a “remarkable”, close, relationship. [ 33 ] The farm was a grain and cattle operation. He was aware that the accused later purchased most of the land farmed by the family, after it had been sold off by their father. He understood the accused leased out some of the land and farmed the rest. [ 34 ] Jim testified that Patrick was living in St.

Albert, Alberta at the time of his death. Patrick was divorced and had no children. Until two years or so before his death, Patrick worked for Alberta Corrections as a psychologist. He was terminated from that employment and was suing his employer for wrongful dismissal at the time of his death. [ 35 ] Jim testified that he and Patrick had a very close relationship in the year before Patrick’s death, as Patrick “moved away” from his relationship with the accused. Patrick stayed with Jim and his wife between August 21 and 23, 1997, before travelling with two cars to the United States.

Patrick told Jim he planned to sell the vehicles in the United States. [ 36 ] Patrick called Jim on August 31, 1997, telling him he was arriving that night on the bus from Winnipeg, Manitoba. Jim picked him up from the bus depot and Patrick stayed at Jim’s house until September 3, 1997. [ 37 ] Jim testified that while Patrick had been in good spirits during his previous visits that year, he seemed stressed on the evening of September 2 and the morning of September 3, 1997. Patrick told Jim he had to go to a meeting with the accused at the latter’s house at 9:00 a.m. on September 3.

Jim drove him there that morning and stayed to chat with Patrick and the accused, outside, before leaving for work. [ 38 ] Jim testified that the accused seemed a little annoyed when he saw him that morning. Jim believed it was because he and Patrick arrived later than expected, and the accused wanted to go out to the farm that day. [ 39 ] Jim never saw Patrick again. A week or so after September 3, 1997, he received communication from Patrick’s friends and his lawyer in Edmonton, Alberta that Patrick had not returned home.

Jim and his siblings began to investigate his possible disappearance. [ 40 ] The accused told Jim that he had dropped Patrick off at the bus depot on September 3, 1997, as arranged, but earlier than the 1:00 p.m. or 1:30 p.m. departure time of the bus. The accused also told Jim that Patrick had called him the same night, or the next morning. [ 41 ] The family received no further news about Patrick and in 2014, this Court declared Patrick to be deceased. Jim was appointed as the administrator of Patrick’s estate. [ 42 ] Jim learned that Patrick did not own farmland jointly with the accused; he owned it outright.

He learned that the accused was the sole beneficiary of Patrick’s pension plan. He learned that the accused was the sole beneficiary of Patrick’s life insurance plan, and that the accused paid the premiums of that insurance policy between Patrick’s disappearance and the court’s declaration in 2014 that Patrick was dead. [ 43 ] In the years following Patrick’s disappearance, Jim and the accused discussed Patrick’s financial affairs and the accused’s contention that the land in Patrick’s name belonged to him (Exhibit P-24).

In 2020, the accused wrote several emails, to Jim and family members, which were consistent with those discussions. Some of these emails read as follows: July 9, 2020, 6:50:20 AM:

The simple facts are that Pat never contributed a dime to the farm. He did contribute quite a bit of labour …. like maybe 3 months of ten hour days …. say maybe a thousand hours. And here i am being very generous with the hours. … Pat never paid a dime of income tax on any farm income …. never ever. … I put much land in Pat’s name largely to hide my ownership …. for reasons which i am not now prepared to disclose. (Exhibit P-24, Tab 1, page 1) [ 44 ] The accused continued in this email to discuss the involvement of various family members in the farmland.

He ended with: So there never ever would have been an estate. to divide up had i not given everything to pat. Don’t forget my agreement with Pat was that i was to receive all money and pay all income taxes and give him some extra stuff tax free for his labour. that is all proven by his and my income tax records. (Exhibit P-24, Tab 1, pages 2-3) [ 45 ] A few hours later, at 9:18 a.m., the accused wrote to Jim, and others, reviewing his recollection of his financial relationship with Patrick.

The gist of the email said Patrick was a big spender and the accused had to assist him financially. [ 46 ] On July 10, 2020, at 2:25 p.m., the accused wrote to Jim and others describing why he started buying farmland in 1973. He wrote that in January 1974, he purchased some of the farmland their father had sold. He said he registered the land in his, his then wife’s, and Patrick’s names.

He repeated that Patrick did not contribute financially to the farmland through work or money. [ 47 ] On August 19, 2020, at 3:15 a.m., the accused wrote to Jim and others, as follows: Patrick and i engaged in a farming operation together. Pat put very little, if any money into the farm in the first 9 years, nor did he take any out. His contribution was equity in exchange for labor. … My agreement with Pat here is critical. we agreed that i would manage all properties, pay all taxes and mortgages including all INCOME TAXES. I would also receive all money from all hay sales pasture rents and gravel sales.

If anything was left over we would share the profits. Pat never ever claimed a dime of income from anything including land sales. … If we were in dispute why would pat put me as the sole beneficiary of his pension and life insurance policies? (Exhibit P-24, Tab 4, pages 2-3) [ 48 ] In the same email, the accused discussed at length his land sales, income taxes paid, etc., and claimed that he was “entitled to all money from all of Pat’s lands …. and nobody else should have gotten a dime” (Exhibit P-24, Tab 4, page 5).

The accused then discussed how Patrick “got into trouble” with some people in Edmonton and that some “guys … threatened Pat” (Exhibit P-24, Tab 4, page 5). He wrote that “Pat made a lot of enemies in [the] several years before he disappeared” (Exhibit P-24, Tab 4, page 6). [ 49 ] In the same email, the accused wrote that he and Patrick came up with a “ruse” when preparing for a trial in November 1988, for which Patrick was fined $6,000 (Exhibit P-24, Tab 4, page 6).

He wrote that Patrick believed the accused owed him $400,000, but the accused wrote he owed Patrick only $7,000. [ 50 ] Jim testified that the emails from the accused were consistent with what the accused had been telling him since Patrick’s disappearance. Jim said his review of Patrick’s finances showed that Patrick was frugal and not a big spender as the accused claimed. He also found that farmland formed the bulk of Patrick’s assets. Evidence of Project Thau [ 51 ] In my decision of May 5, 2023, I related the evidence heard on the voir dire .

I am repeating some of that evidence here as counsel have agreed it may be applied to the trial proper: Agreed Statement of Facts for Trial, Exhibit P-1, para. 26.

[ 52 ] Sgt. Pierre Beauchesne of the Regina Police Service [RPS] testified at the voir dire that the investigation into Patrick’s disappearance, on September 3, 1997, had reached a point where there were no reasonable investigative paths remaining. As such, the RPS decided to conduct a covert operation with two objectives. They called the covert police operation “Project Thau”. The first objective was to locate Patrick’s remains.

The second objective was to exclude or confirm the accused as the person responsible for Patrick’s disappearance and presumed murder. [ 53 ] The RPS knew that Patrick had purchased three bus tickets in Winnipeg, on August 31, 1997, to travel home to Edmonton, via Regina and Saskatoon. The RPS was aware that Patrick used only the ticket from Winnipeg to Regina on August 31, 1997. [ 54 ] Police were also aware that Patrick was driven to the accused’s home by Jim on September 3, 1997, and two weeks later, on September 16, 1997, the accused had reported Patrick missing.

In his formal, written statement to police, the accused said he had taken Patrick to the Regina bus depot on September 3, 1997, but no-one in the family had heard from him since, or had any information of his whereabouts. [ 55 ] The RPS investigation into Patrick’s disappearance was active, on and off, for many years. Patrick was declared dead by this Court in December 2014. Patrick’s disappearance had become a “cold case” and by 2020, police were no closer to learning what had happened to him. [ 56 ] The RPS considered the accused to be a person of interest because of his business relationship with Patrick.

In late 2019, the RPS began to plan Project Thau, beginning with authorized wiretaps to learn more about him. [ 57 ] Through wiretaps, and other information, police learned that the accused was angry at a member of the community whom I will call A.B. Indeed, police learned the accused had promised money to a third party to harm A.B. (A.B. was not involved in the covert operation). [ 58 ] Undercover officer “Cliff” also testified at the voir dire . He said that on November 20, 2020, he came to the accused’s home and asked to speak with him.

The accused agreed to do so, outside. [ 59 ] Cliff said he was accompanied by another officer playing his niece “Sam”. Cliff told the accused that Sam had employed A.B. and loaned money to him. However, A.B. had “scammed” Sam. Cliff told the accused he intended to get his niece’s money back from A.B., but he needed the accused’s help in locating him. He promised to also obtain the $30,000 the accused told Cliff he had lost to A.B. The accused told Cliff he would like harm to come to A.B. [ 60 ] Cliff told the accused to leave A.B. to him.

However, after his conversation with Cliff, the accused went looking for A.B. on his own, contrary to instruction. On November 21, 2020, the accused called Cliff and gave him information about A.B.’s address and vehicle description. [ 61 ] Later that day, the accused and Cliff met. They travelled together to find A.B.’s house and vehicle.

On speakerphone, Cliff received a call from an “associate”, another undercover officer, giving Cliff information that A.B. drove a particular vehicle in addition to the vehicle known to the accused. [ 62 ] The accused helped Cliff find the vehicle and watched from the car while Cliff smashed the vehicle’s windows with a hammer and physically confronted another officer posing as A.B.’s friend. The accused showed no concern over Cliff’s use of violence, although he expressed concern that Cliff overdid the damage to the vehicle. [ 63 ] The accused told Cliff he would have done things differently.

He said he would have taken the hammer to A.B. At the same time, he did not want A.B. to know of his involvement in the incident because he feared for his safety from A.B. Cliff called the accused on November 22, 2020, to ensure the accused had received no “blowback” from A.B. The accused responded that he had heard nothing from A.B., and he had some advice to give to Cliff. They agreed to meet in the next few days. [ 64 ] On November 26, 2020, the accused gave Cliff the advice he had promised. He also told Cliff that the police have interviewed him over the years about the disappearance of his brother.

When Cliff told him he did not want to know about it because it was the accused’s business, the accused insisted on continuing with the conversation. He appeared to be anxious to make the point that he had experience dealing with the police and not telling them anything of note. [ 65 ] Cliff’s plan to get Sam’s and the accused’s money back from A.B. developed into a plan designed to make A.B. “disappear”. On November 26, 2020, the accused and Cliff met with another undercover operator, posing as an insurance agent loyal to Cliff. Cliff and the “agent” pretended to create a life insurance policy for A.B.

In this plan, A.B. would “disappear” and, eventually, Sam would receive the proceeds of the insurance payout as A.B.’s “former boss”. Cliff told the accused he could also expect to recoup his $30,000 from the insurance proceeds. [ 66 ] Again, the accused showed his comfort with the planned violence to A.B. After leaving the meeting with the agent, Cliff asked the accused if he had “ever put anyone in the ground?”. The accused told Cliff, “I would prefer not to answer that question”. [ 67 ] Over the next few days, the accused continued to demonstrate his comfort with Cliff as the plan progressed.

Cliff introduced a scenario whereby his “sister”, played by an undercover operator, ran a ring of sex workers. The sister, called Tammy, and Cliff were supposedly in business together. [ 68 ] Cliff told the accused that Tammy was in a relationship with a police officer who was willing to provide her with information. Cliff asked Tammy, in front of the accused, to have the officer research the accused to learn whether his family had any connections with the police.

[ 69 ] In a conversation between Cliff and the accused, the latter discussed whether he was comfortable with the plan to make A.B. disappear and expressed his admiration for Cliff (UC is Cliff, T1 is the accused): UC: You sure, you want this to go down? Tl: Yes. Im impressed by the way, by your .. UC: The way I do business. Tl: The way you do business. UC: Youre impressed by it? Tl: Youre better than I am. UC: You've done, you've had to make some business plans like that in the past? Tl: I have. UC: Yeah. So youre not afraid of getting dirt on your hands. Tl: No. UC: Youre not? T1: No.

Im too old to worry about that. … . . . UC: Okay, alright I want to be sure that you don't, that you're not just bullshitting me and trying to impress me. Tl: (laughs) I told you Ive given up impressing people when I was about 10 years old . I, you saw, I tried to depress people. I drive an old van. I, I, I try to give the appearance of an (unintelligible), I dress like a bum. I don't try to impress people ... (Exhibit P-7, Tab 4, pages 32-33) [Emphasis added] [ 70 ] The accused told Cliff, the police “can’t touch you without a body”. Cliff asked how he would get rid of a body.

The accused answered: Tl: 1500 acres of bush. UC: Yeah just throw it, but wouldn't that fucking coyotes? Or would you put him in the dirt like? Tl: Oh no no. It goes in the dug out. UC: It has to go in the dugout. Tl: (laughs) UC: Like into a dugout? Don't they float to the top those fucking dudes? Tl: Yeah but you gotta bury it into there. UC: How the fuck you bury in a dugout if theres water in there? Tl: I would just dump a bunch of rocks on top of him. UC: Ohhh and then they don't come up. Tl: Never. (Exhibit P-7, Tab 4, page 35) [ 71 ] The pretend kidnapping of A.B. occurred the next day.

In a telephone call, on speakerphone in Cliff’s car, one of Cliff’s “associates” told Cliff and the accused that they had A.B. in the motel, as directed. Cliff told them they were not to harm A.B. while he considered his next step. [ 72 ] Cliff and the accused returned to Tammy’s apartment after Tammy called Cliff to tell him she had an envelope for him. In the apartment, Cliff found the envelope and told the accused he needed to speak to him about its contents.

This conversation began by Cliff asking the accused whether he could trust him: UC: But the most important thing above all to me Joe, most important when I look someone in the eyes that I can trust… T1: Mmhmm. UC: …and I have that magnetic connection that I feel my soul is the similar to their’s

T1: Yeah, yeah, yeah. UC: I want to be sure that there’s no bullshit on the table. T1: None UC: Like that. None. So here's what I'm going to share with you cause I told you there's a couple things that are weighing on my head. T1: yeah, yeah UC: and I want to be certain that I'm not wrong, okay? Yesterday when we came here my sister she has a relationship with a cop. T1: Yeah. UC: that's her, that's her business. T1: Yeah, I know. UC: That's her business and I asked her to specifically to make sure that you're not somebody can turn and like what you said earlier, bite the hand that feeds you, right?

But what did I learn right there tells me why I trust you? T1: I don't need you to tell me why you might not trust me . UC: That's why I trust you, I believe I should trust you because I think we're similar. T1: (unintelligible) I don't know what you learned but I have an idea of what you learned . UC: Yeah, that's what I want to talk to you about so I know that my secrets are shared with you. T1: They go with me to my grave. UC: To your grave? T1: That's not too far away by the way. UC: Huh, but I want to make sure that your secret goes to your grave. T1: (Unintelligible) yeah.

UC: If that's what you're telling me is going to happen I want to make sure my secret is with you. T1: Well I've told you that many times. UC: Okay. T1: I don't, I don't have to tell you very often. You know me I'm too old to.. UC: To bullshit? T1: To bullshit about (unintelligible) and I think differently tomorrow. UC: Okay. T1: I don't work that way. UC: Does everything make sense to you so far what I just said. So I'm going to ask you. T1: Ask me. UC: Cause I think we're the same. T1: In many ways. UC: In many ways. But I wanted to be sure that the person I put my trust in is not a bullshitter. T1: Exactly.

UC: And I want to be sure that the person I believe in that has my secret isn't going to do like you said and bite that hands that feed you. That's what I need to be certain about. T1: There isn't one chance in a hundred of that happening, or even in the thousands. UC: So I'm gonna, I'm gonna break a truth bread and I'm going to give you half, and I'm going to my half, and you’re going to have your half. I'm going to ask you some – I don't want you to bullshit me. T1: No.

UC: I want you to be honest . T1: Totally . UC: I want to know that the person I'm trusting is a straight arrow, and straight shooter with me . T1: Totally . UC: Okay. So I read, stayed up last night reading (T1 laughs) I read quite a bit. T1: I was, I was going to tell you without you having to do the research. UC: (unintelligible) T1: I would have told you everything . UC: Okay, just let, let me know we’re the same person. Don't bullshit me, don't make something bigger than it is, just like I told you. I've been straight, I want you to be straight. T1: 100 percent. Well, 99.9 UC: No, a 100 percent.

T1: Okay, a 100. (laughs) UC: Who is Patrick to you? T1: He’s my brother UC: And, uh, what happened to your brother? You told me he went missing . T1: Yes. UC: What happened ? T1: Uh, do I have to say ? UC: Our secrets are going to be shared T1: Okay. UC: Don't bullshit me . T1: I won’t. Uh, um, we were business partners at the farm. UC: K. T1: He lost his marbles UC: K, what does that mean? He lost his marbles? Like what other word is that? T1: Um, okay I’ll give you a perspective here from psychological point of view. His thinking became very distorted. … UC: And he’s your business partner T1: Yeah. UC: Okay.

T1: And he started selling off the land. UC: Your land? The land you guys own? T1: Yeah. UC: Okay. T1: And so there’s a long history there involved in that. And, uh, he had, uh, he had, he had a lot of enemies, k? And just, uh, one day he disappeared. UC: Okay, I don’t want you to bullshit me because I did a lot of reading . T1: yeah.

UC: And you… T1: I’ll tell you something. UC: Tell me straight, tell me straight exactly . T1: Okay, I’ll tell you . … (Exhibit P-7, Tab 5, pages 20-22) [Emphasis added) [ 73 ] The conversation between Cliff and the accused carried on during which the accused told Cliff he had tried to negotiate with Patrick over the land because he has to provide for his four kids. He told Cliff he transferred “almost everything” into Patrick’s name during his divorce “fight” and because he planned to go bankrupt ( Exhibit P-7, Tab 5, pages 24-25).

He said the negotiations with Patrick did not go well (Exhibit P-7, Tab 5, page 29). [ 74 ] The accused told Cliff he hit Patrick over the head with a hammer while Patrick was standing in front of the table in the kitchen reading a contract (Exhibit P-7, Tab 5, page 31). He said Barbara was downstairs. She knew what happened. She was “not happy but she understood” (Exhibit P-7, Tab 5, page 31). [ 75 ] The accused told Cliff negotiations had not gone well for a couple of years, so “its not like this just happened” (Exhibit P-7, Tab 5, page 32).

He had a hammer there because he thought about it and if things did not go well, he would use it. He said, “nothing would have happened if, if he had been a little more generous with his, uh, … [w]ith his turning over the land back to me” (Exhibit P-7, Tab 5, page 33). He continued: T1: But because he didn’t turn the land over, what choice did I have? He, he was going to sell it all off? UC: Right. T1: I mean these are, you know I had, these are my main assets. UC: Right. You worked hard. T1: I, I got, okay, I, I had a couple of quarters that were in my name. UC: Yeah.

T1: But 10 quarters were his or so (unintelligible) UC: Right. And once you have… T1: … were in his name. But they weren’t, they weren’t his, they were never his. I mean, I, I worked hard for, for all that . (Exhibit P-7, Tab 5, page 34) [Emphasis added) [ 76 ] The accused told Cliff he hit Patrick on the back of his head with the hammer three, four, or five times. Patrick fell over on his back after the first blow. The accused used a thin rope to “cut off [Patrick’s] air supply” because Patrick was unconscious but still breathing (Exhibit P-7, Tab 5, pages 38-39).

The accused said, “[the rope] was something that I had put there”, he did not have to go look for it (Exhibit P-7, Tab 5, page 39). Five minutes later, Patrick was dead. [ 77 ] The accused told Cliff he waited until darkness, wrapped his body in a blanket, dragged it to his truck, drove his truck to “the farm” and left Patrick’s body in a slough, in a hole he dug with “a whole bunch of rocks on top” (Exhibit P-7, Tab 5, page 49).

When Cliff asks the accused to clarify whether it was his farm, the accused said: “well I’m not going to go to somebody else’s farm” (Exhibit P-7, Tab 5, page 45). [ 78 ] Later the same day, the accused drove with Cliff out to “the farm”. He showed Cliff the site of Patrick’s burial. After Cliff and the accused left the property, police dug in the area pointed out by the accused to Cliff and discovered human remains. DNA testing identified the human remains as likely the partial remains of Patrick Thauberger. [ 79 ] On December 7, 2020, forensic anthropologist Dr. Ernest Walker examined the human remains.

The skeleton was incomplete with saw marks on various parts of the torso and other bones leading Dr. Walker to conclude that the limbs and skull had been sawn off. The bones were black which was consistent with being in water. Dr. Walker also identified clay and the remains of a snail and a muskrat adhering to the bones, again consistent with the bones lying in water. Evidence of the accused, Joseph Thauberger [ 80 ] The accused testified at trial. On the date of Patrick’s death, the accused was 55 years old, and at trial he was 80.

He is a trained teacher and special education consultant, but he has farmed fulltime since 1974. He began farming after buying back some of his family’s farmland. [ 81 ] The accused explained that he and Patrick were partners in the farming operation. The accused said he had a bad back and he needed assistance driving the tractor, so, as an incentive, he added Patrick’s name to the farm titles. However, to the accused’s chagrin, Patrick provided only 75 days of work between 1974 and 1982.

[ 82 ] The accused said their partnership began as soon as the accused bought the land in January 1974. He put the land in his, Patrick’s, and his wife’s names. Their agreement was that the accused paid Patrick in cash, after the accused took the profits and paid the taxes. [ 83 ] The accused purchased another two and one-half quarters thereafter, but he could not remember whose name he put the land in although he remembers every other detail of the purchase. He repeated that Patrick’s enthusiasm for farming was not high. [ 84 ] The accused testified that he and Patrick had been very close in their younger years.

Indeed, the relationship was strong enough that Patrick agreed to help the accused hide assets from his first wife. [ 85 ] The accused and his first wife separated in July 1986, and the separation became acrimonious. The accused testified that he transferred some of his land into Patrick’s name to shield the property from his ex-wife. He was unclear about who was on title for the 10 quarters of land he owned, although under cross examination, he said he had 15 quarters of land.

He said his ex-wife’s name may have been on two or three of the quarters of land. [ 86 ] The accused testified that he and Patrick tried to mislead the court about who owned the property during a trial in 1988. He said Patrick was “fined” $6,000, although likely the order was to pay costs in that amount. Patrick was directed to pay the $6,000 to the accused’s ex-wife. Patrick also incurred $16,500 in legal fees, although the accused said he reimbursed Patrick for both amounts. [ 87 ] The accused testified that in September 1997, he was not aware of any serious issues or hostilities between them.

He repeated several times that any disputes between them ended after April 2, 1996, when he received approximately $125,000 from an insurance company, following a motor vehicle accident (see also Exhibit D-4). However, he agreed, “to a point” that Patrick wanted to sell land against the accused’s wishes after Patrick was terminated from his employment. [ 88 ] The accused also testified that he could have bought the land from Patrick after 1996. When asked by the Crown why he would have to buy the land from Patrick if it was actually his land, he would not explain.

He said he sold some land prior to 1996 and gave Patrick the money, but he was unhappy that Patrick invested the money badly. [ 89 ] In 1997, though, everything between them was fine. While Patrick was hard up for money because of losing his job, he and Patrick had only minor disagreements. He denied Patrick was becoming a difficult business partner. The accused did not agree that Patrick had “lost his marbles”, as he wrote in emails to Jim.

He said Patrick was “a little excessively paranoid” and had a psychic in Texas who “ran his life”. [ 90 ] Later, during cross examination, the accused acknowledged he truthfully told Cliff that Patrick was selling off land. Then, he said he did not remember whether Patrick was selling off the land, although he agreed with what he told Cliff, that Patrick had him “over a barrel”. [ 91 ] Remarkably, the accused testified that if he was going to kill Patrick, he would have done it a few years earlier when he was short of money.

However, he added that on September 3, 1997, he was not motivated to kill Patrick. [ 92 ] The accused testified he learned the night of September 2, 1997, that Patrick was coming to his house on September 3, 1997, although he knew earlier that Patrick would be in town staying with Jim. Patrick and Jim arrived at approximately 10:00 a.m. that day.

The accused said he had agreed to drive Patrick to the bus depot for his 1:00 p.m. bus to Edmonton because Jim had to go to work. [ 93 ] The accused said he visited with Jim and Patrick for about five minutes that morning and then he and Patrick went inside, sat down in the living room, and chatted amicably about the farm and their lives. He said they chatted for one and a half to two hours. During their chat, the accused’s narcolepsy caught up with him and he had a short nap. [ 94 ] Sometime before September 3, 1997, someone had called the accused to rent pastureland.

However, the land was in Patrick’s name and the prospective renter would only speak with the landowner. The accused said he wrote up a draft rental contract for Patrick and the interested party to sign. [ 95 ] After the chat in the living room, the accused showed the contract to Patrick, which Patrick reviewed at the kitchen table. Then, he said, Patrick asked to see a file relating to the contract. The accused testified he went upstairs to his filing cabinet on the second storey.

He said Patrick came up behind him, very soon after, although he did not see Patrick on the stairs. [ 96 ] The accused testified that Patrick had not been up to this floor of the house before. The steps are steep, and the single handrail ends at the ceiling of the lower storey, leaving no railing for the last four steps. On the left of the last few stairs there is a three and one-half foot wall built to fold down to close off the top storey, which was once a self-contained suite.

He said people often used the wall to hold onto for the last four steps. [ 97 ] The accused said Patrick was in a bit of a hurry, and the next thing he heard was a loud yelling sound, “aaahhh”. He said he did not see Patrick fall. [ 98 ] On cross examination, he said the sound was more like “ow, ow, ow” while Patrick was either banging, or sliding backwards down the stairs. Then he heard a big bang when Patrick hit the bottom of the stairs. The accused ran down to see what was going on. Patrick’s head was twisted to one side. [ 99 ] Later, he testified that Patrick must have fallen backwards.

His head was in the hallway and his body and feet were facing south, close to the first step.

[ 100 ] The accused testified that it looked like Patrick hit the post of the door frame at the bottom of the stairs. Under cross examination, the accused said Patrick was likely carrying papers because he saw Patrick with papers when he was still downstairs.

He said Patrick was not being menacing, or acrimonious, but he was curious to see what kind of papers the accused had in the filing cabinet relating to the farm. [ 101 ] The accused did not acknowledge he was unhappy about Patrick wanting to see the file, or document, until the end of the Crown’s cross examination when he was confronted with this part of his police statement: D Well tell me what the argument was about. Let’s not talk about how Pat died. Tell me what the argument was about. What spurred on our incident? On September 3rd what was the argument about Joe?

J He wanted to see a paper that I had upstairs. K. D What kind of paper? J Well I can’t even – it was relating to something about… D Like a deed or something? Or? J Well I can’t even remember anymore. I know it was related to the farm. D Oh okay. J Cause you know I got a hundred and one. D Yeah, you got so much land and shit. J Papers there that I, you know, keeping it all straight I, I can’t – he wanted to see that. D Did you let him? J And I didn’t want him to see it, or I didn’t think it was any of his business … D mmm. J …because it was more of a personal, I think, thing .

I can’t remember the exact… D Yeah, that’s fair enough. J …details, you know. D You don’t need – if someone wants to see something of mine… J All I know is that, is that I wasn’t happy about … D Him wanting to see it ? J Him wanting to see it. D Fair enough. So that, that gets things… J That lead to… D …a little heated. J …a little bit of a… D Little… J …little bit of a… D Dust up. J Discussion. (Exhibit P-13, pages 43-44) [ 102 ] The accused acknowledged under cross examination that he was “a little reluctant to … let Pat go though my filing cabinet”.

He explained that he did not testify earlier to being “reluctant” because he did not remember what he had told the police officer. He did remember telling the officer that Patrick’s death was an accident and that he had no motive to kill Patrick because he “had more money than [he] knew what to do with”. [ 103 ] The accused said that Patrick was still breathing, but that lasted only a few minutes. Patrick was unconscious, making no sound. Under cross examination, the accused said Patrick may have been conscious only a minute or two after he hit the ground.

[ 104 ] The accused said he considered phoning an ambulance. He did not check Patrick’s pulse or provide any first aid. He said he checked his breath by looking at him, three to four feet away. However, when Patrick looked like he was dead, the accused said he had to decide what to do. [ 105 ] The accused said Barbara came upstairs from the basement immediately after she heard the crash on the floor and Patrick yelling. She opened the door to the kitchen and asked, “what the heck is going on”. The accused testified that he responded, “Pat had an accident”.

To that, Barbara replied, “I don’t want to know anything about it” and she went back downstairs. He did not ask Barbara to call an ambulance or help him care for Patrick in any way. [ 106 ] The accused said he did not consider calling the police. He assumed Patrick was dead because he was not breathing. It occurred to him that if he told anyone about the accident, he would go to jail based on what happened to Guy Paul Morin, David Milgaard, Clayton Johnson, Steven Truscott and “the five or six other guys who were falsely convicted”.

He related how he was living in Saskatoon when the murder for which David Milgaard was wrongfully convicted occurred. [ 107 ] Under cross examination, the accused asserted that he was convinced that if he reported the accident “given all the previous disagreements that [he] had with Pat”, he would have gone to jail so he was “forced” to cover up Patrick’s death. [ 108 ] The accused denied that he locked the kitchen door leading to the basement. He said he might have locked it later when Patrick was lying on the floor because he did not want friends or family to see him there.

He also denied telling Barbara to go back downstairs. [ 109 ] The accused said there was “a tiny bit of blood” on the floor where Patrick had hit his head against the post. He cannot remember what happened to the blood, saying either he or Barbara wiped it up. [ 110 ] The accused testified that Patrick lay in place for a long time. He said he was thinking about what he should do. He cannot remember what he thought about, although he likely considered the Milgaard case.

Sometime between the accident at noon and 9:00 p.m. that night, the accused decided to take Patrick to the farm. [ 111 ] The accused said he got a carpet from the living room, dragged Patrick by the legs into the kitchen, and rolled Patrick up in the carpet. Thereafter, he dragged the carpet out of the house, down the stairs, and into the truck he had backed up to the stairs. [ 112 ] The accused said it was after dark when he “hauled him to the farm”. Barbara was still downstairs. At the farm, he put his body in the slough, intending to bury him there.

He then came home. [ 113 ] The accused testified the slough was on one of the six quarters of land he and others, including Patrick, had bought in March 1992. The accused said he had to put Patrick in the slough in case there was an investigation because dogs cannot smell through water. His plan was to bury him in the slough, under water. He selected that particular slough because it was conveniently accessible and had two feet of water and a rock pile.

He said there was three inches of dirt over the body, that the sediment in the slough was like glue and hard to dig through. [ 114 ] Under cross examination, the accused testified that he backed up to the slough and pulled Patrick’s body into the slough. He believes the body sank, and he returned home. He testified he may have put an iron bar, a logging chain, or a fence post, on top of Patrick’s body. [ 115 ] The accused said he had a bad back, so he decided to hire a man who worked for a neighbour to bury Patrick’s body. He cannot remember the hired man’s name.

Before this, the hired man had worked for the accused over one or two weekends. Later, he said it had been three or four weekends. It was three days later when he connected with the hired man. He does not recall whether the man came over to him, or whether he went to see him. [ 116 ] In the meantime, the accused said he checked the slough to see if Patrick’s body had surfaced. Later, he said he moved Patrick’s body close to the rock pile, but he doesn’t specifically recall. [ 117 ] He believes he had hip waders on when he tried to dig a hole in the slough with a spade to bury Patrick.

He did not say when he did that, but he decided he needed help. [ 118 ] The accused said he knew the hired man’s name at that time. He told the man that he needed his help to bury “the body”. He told the man that Patrick had fallen down the stairs and he, the accused, had to cover it up. [ 119 ] The accused said he promised to pay the man $500 upfront and $1,000 a year later, if he kept quiet. The accused said he left the hired man to bury Patrick’s body and he went swathing. [ 120 ] Patrick’s body was not cut up at that point.

The accused testified the hired man did not tell him he cut up the body, but he speculates the man cut Patrick’s head and limbs off for easier burial. He also speculates that the hired man buried the rest of the body in the same slough, and not elsewhere, because it only took the man three or four hours to complete the job. [ 121 ] The accused testified that he knew where the torso was located because the hired man told him and because he told the man to bury the body near the rock pile.

He said he paid the man as promised and, after receiving his last payment the following July, the hired man disappeared. [ 122 ] The accused testified that, after Patrick died, he told his family he had dropped Patrick off at the bus depot and gone to the farm. A week or ten days later, he learned that Patrick’s friends had telephoned Jim to say that Patrick had not arrived in Edmonton. He said his family then told him to report Patrick as a missing person.

[ 123 ] On September 16, 1997, the accused reported Patrick missing to the police and told them that Patrick had reasons to be paranoid. The accused testified that Patrick’s state of mind was a secondary issue and maybe he should not have said anything. [ 124 ] The accused denied the truth of statements to his daughter Fran on December 27, 2020 “that what happened to Pat was because he was seriously off his rocker” (see Exhibit P-16, Tab 2, page 6). The accused explained at trial that he was irritated because he was in jail.

He said he exaggerated Patrick’s condition “to explain the fact that he put me in jail. … it was his falling down the stairs that is the reason why I ended up in jail”. [ 125 ] When presented with the following statement to Fran in the same conversation: …this was harvest time.

Was I supposed to let my crop and whole crop rot out in the field while I dealt with Pat’s death and his, uh, and his, uh, you know, all the funeral, and the investigations, and the police investigations, and I just let my whole … thousands of dollars just rot out in the field. (Exhibit P-16, Tab 2, page 7) the accused explained that at that time his “story was that I had … driven Pat to the bus depot and dropped him off there, so I wasn’t admitting to anybody that I was worried that I was going to jail if I reported the accident”.

He testified he was not happy about being in jail so his statements at that time had “a tone of irritation”. [ 126 ] The accused testified that his family members located a will in which Patrick left the land and his house to a girlfriend named Joanne. In a lengthy process, Jim obtained an order invalidating the will and Patrick’s estate was distributed to his siblings. [ 127 ] The accused testified he was the beneficiary of Patrick’s life insurance policy, valued at $100,000, which he said he did not know about until he received a telephone call from an insurance company in October 1997.

He said this was a “big surprise” to him. The premiums were $1,325 a year and had not been paid. He was told he could continue the policy if he paid the premiums. He did so until Patrick was declared dead. [ 128 ] The accused testified that the money he received from the policy payout was a “drop in the bucket”, given the money he was receiving at that time from the gravel pits. He also said the pension went to the estate, not to him, as testified to by Jim. [ 129 ] The accused testified that in the weeks following Patrick’s death, Barbara was “very stressed out about the whole business”.

He said he was sympathetic because she had nothing to do with it. There was no police investigation for five, six or seven years, but he made a deal with the police that he would take a lie detector test if they left her alone. [ 130 ] When the accused was asked what he thought of Cliff, he said he was sucked in by the promise of $32,000. The accused said he was sucked in because he is such an honest person, although, on their last day together, the accused said he was getting suspicious. He said he told Cliff: “I assume everything has been recorded”.

However, he did not walk back his story that he killed Patrick. [ 131 ] The accused said Cliff counted out $30,000 in front of him and told him the only way he would get this money is if he confessed to Cliff to having done something bad in the past. The accused was short of money at that time. He believed that he would not get the money if he told Cliff that Patrick had died by accident.

For that reason, he manufactured a story that he had killed Patrick so that he would receive the $30,000. [ 132 ] In cross examination, the accused reiterated that Cliff told him that in order for Cliff to trust him, he had to know the accused committed a serious crime in the past. [ 133 ] When confronted with the fact that Cliff had said nothing of the sort, the accused stood his ground. The accused agreed that Cliff wanted him to be honest, but that would have disqualified him from the $30,000. Cliff asked him to tell him something he had done that was very bad.

The accused believed that burying Patrick was not bad enough because it was for self-preservation. [ 134 ] The accused repeated often in his testimony that he believed if he reported the incident, there was a “98% chance” he would be convicted of murder, because he and Patrick were business partners “and that’s a no-no … that’s a bad sign, everybody is killing each other when you are in business together”.

He said he had no choice but to cover it up. [ 135 ] The difficulty with the accused’s stated concern about being wrongfully convicted is that he suggests to the police when they do arrest him that an accident is a possibility, but so are other scenarios: D So you’re saying you’re not a – so what you’re telling me is you’re not a murderer. J That’s right. D But Patrick went out of a house in a rug? J Right. D From your house but your not a murderer? J That’s right. D And you were the only one upstairs with him? J That’s right.

D So like I said, I’m not in the Mensa club… J No, that’s fine. But no there’s … D That… J … a whole range of possibilities, right? You know I could have been a premediated murderer . D Could very well be. J I could be a second degree murderer . D Could be. J And I could be I don’t – see I don’t understand third degree. I don’t even know what (unintelligible) D Just first and second. And then manslaughter. J Oh that, oh that’s down in the States they got… D Yeah, they got those… J …third degree. D …different things. J And manslaughter? Yeah. It could be – and it could be an accident .

So… (Exhibit P-13, page 80) [ 136 ] The accused testified that the time involved in an investigation and funeral “was not a factor in the equation” in deciding not to call the police, although that was what he told his daughter Fran, when they spoke over the telephone a month later. The accused was remanded at the Regina Provincial Correctional Centre at the time. He told Fran that Patrick’s death was an accident and Patrick fell down the stairs.

The accused explained to her why he had never disclosed the accident to anyone: J What, what, what you guys, what I’ve never mentioned and Tony Bologna it’s time you, you got onto that. I’ve never mentioned this to anybody and that is that in 96’ about a year before Pat’s disappearance I got a $125,000.00 tax free from my broken neck. Did you know that? F Right. J And that put me in a (coughs) I could have bought Pat out completely and we, we were planning to do that to some extent. Not completely but – so I had, I paid off my mortgage. I paid off Grandpa T.

I had $50,000.00 floating around and I had quite a bit of gravel money was coming in at that time too. And farm money and so it wasn’t, uh, those were fairly good years. So, uh, Pat’s, let’s say disappearance was enormously and that can easily be proven by my tax records, was enormously disastrous for me. So, so why would I go and kill somebody just to beat myself up or whatever because now he couldn’t sign any more land over to me and I still had to go on paying completely for everything. So… F Yeah, I know. J …I paid off all, all the mortgages. You know what I mean.

Without getting anything back. … J Well you know, had I, had I reported it as an accident – like harvest was just beginning. I didn’t have time deal with a funeral, and to deal with police investigations, and all the rest of it. So I – harvest was just beginning. What am I supposed to do, let the grain rot in the field? And, uh, and, uh, so I, I had to, uh, I took the best course of action that I thought was, uh, was best. F Right. J So, you know that was just, uh, and, uh, so it worked well for 23 years. (laughs) Well yeah, I guess, I don’t know.

Now in retrospect I guess that – see at the time I didn’t know that, that Pat had made me beneficiary of his life insurance while I was – and, and I had to pay into that for 18 years. $1350.00 a year. And he made me the beneficiary of his, of his life insurance policy which half of it went for taxes. Not life insurance, sorry. His, uh, pension.

Half of that went… F Oh. (Exhibit P-16, Tab 1, pages 2 - 3) [ 137 ] On December 27, 2020, at 2:33 p.m., the accused spoke again to his daughter Fran, saying that “all this happened” because of Patrick’s “insanity”: J …you’ve got to understand that what happened to Pat was because he was seriously off his rocker. His insanity… F Right

J …is the reason that all this happened. F I know, I know. J So my culpability in the whole matter is, is minimized because of his, uh, uh, irrational and, uh, pathological behavior. F Yes, I know. I think it was probably still a mistake though even if somebody gets like that. J And that’s, and that’s something that the whole family has denied right from the beginning. That Pat was sick in the head. Serious. F I know. J Serious. F I know, so it’s probably pretty difficult to – for everyone to get on the same page about that.

But, but it doesn’t matter if they deny it as long as they understand that that’s what you, that you observed some things, or that you believed that he was seriously off his rocker. And of course I also believe that because of what Eric has reported from his time that he stayed with Pat. J Yeah. F But even if somebody’s completely looney sometimes you have to accept the loss that’s been created as bad luck or whatever because it’s not allowed to get rid of him. J No, I know. That’s why it was accidental. F I know. J He fell down the stairs and what, what else is there to say about that?

F Well what was he doing upstairs? J Well that’s another long story. But just look the, the case that approximated – did you ready up on, on Clayton Johnson? Look up Clayton Johnson… F Well I didn’t read up… J …on the internet. F …a whole bunch of details but it’s just… J Well his wife, his wife fell down the stairs and he was charged with her murder. Which was totally…. F Yeah. J …totally fabricated. I mean his – the fact that he murdered her was a total fabrication. He was 100% innocent. F Yeah, but he probably didn’t go and hide her in a bush. J No, that’s – but that’s a separate issue. F I know.

J I mean the reason there was because, I mean, this was harvest time. Was I supposed to let my crop and whole crop rot out in the field while I dealt with Pat’s death and his, uh, and his, uh, you know, all the funeral, and the investigations, and the police investigations, and I just let my whole…. O You have one minute remaining for this call. J …thousands of dollars just rot out in the field.

That’s why … (Exhibit P-16, Tab 2, pages 6-7) [ 138 ] When asked by the Crown why Patrick’s “insanity … is the reason that all this happened”, he would not explain and spoke about other matters. [ 139 ] The accused has not hidden his lack of candour. In his statement to police, on November 29, 2020, the accused said: J Well I told, I told the police some lies, didn’t I ? D Oh, of course you have. J (unintelligible) D You only said one true thing I said.

J But, but that, but you know, when somebody standing with a, with a big hammer over your head . D Oh, I know. You did it, you did it, you did it, you did it. J And you’re going to go to jail for the rest of your life . D Yeah.

J Well then you’re going to get inclined to make up a few stories . (Exhibit P-13, page 51) [Emphasis added] [ 140 ] The accused presciently told the officer the only thing up for debate is whether Patrick was murdered or died by accident, making no claim that the latter occurred: D So humor me and explain to me an accident that we’ve described with head injury, a pool of blood, um, laying on the floor and not stabbing, shooting, physical force or hitting does that happen. J Mmhmm. D And being cognizant enough after that happens to be fearful enough that the police if they come will say it’s not an accident.

Roll him up in a carpet, put him in the truck, drive him out to the farm… J Well.. D …and likely buried me somewhere. Is – and I think everything I have just said is 100% true of what happened that day except… J Except the murder. D Except the accident. J And the accident. That’s not clear. D Murder. Accident .

J That’s the only item up for debate . (Exhibit P-13, page 111) [Emphasis added] [ 141 ] The accused then suggests that Patrick was pushed before he died, after a conversation about why the accused did not want to show police where he buried Patrick, saying his children would prefer he stayed out of jail: D Even if it was just a missing person body of someone who died in a bush people want their loved one back. J Yeah, but the implications are is there – if you ask my kids for example.

And the implication is, well yes, if we go through all that routine but my dad has to spend, uh, uh, 6 months in jail and then he dies in jail. Um, would they say, uh, uh, would they answer yes to your question? I doubt it. D Yeah. J No. D No? J Would they want their dad to die in jail for…. D I don’t – no, they wouldn’t. J Of course they wouldn’t D They don’t want him to… J Course they wouldn’t. D But they’d also like to have… J The closure. D The closure and the bones. J I don’t think they want the… D And if… J They’d rather have their dad…

D They’d rather you live? J …live… D Live out in… J …die in jail for murder I didn’t commit. D Well who committed it? J Huh? D Who committed it? J It didn’t happen. D It didn’t happen? J That’s right. D A murder didn’t happen ? J That’s right . D He accidently fell on the floor, cracked his head open, was bleeding … J Now you’re, you’re getting close . D Did you shove? No, you said you didn’t push him. You didn’t do any physical force you said . J Well I didn’t exactly say that but anyways … D No, remember I said did you put any physical force on him and you said no . J Well did I say that ?

D Yeah, that’s why I asked you . I tried to cover all the gametes ( sic ) off. J Well I don’t really remember you saying that precisely but did I, did I – when you say did I push him, hmm, hmm, what’s a push? You know we’re getting close though . D What’s a push? J Yeah, what’s a push? D Hard shove. Little shove. Shove from behind. J Oh yeah, but sometimes a little… D Shove in the chest. J … I mean sometimes there’s accidental pushes and intentional pushes . D Well you wouldn’t… J No, I mean people, people bump into somebody and they.. D Or two guys are arguing and they push each other. It’s a push.

J Yeah, yeah that’s… D It’s a push, right? J No, you’re right. You’re right. D We – I’ve pushed my friends. They’ve pushed me. J Yeah, yeah. D Right? If you and I were standing up together, and you poked me in the chest, and I gave you a push, right?. J There’s one thing at least we know is that if you had your hands tied behind your back. Right now. D Yeah. J And we got into a fight I would lose. (Thauberger laughs) So…

D You know, I don’t know. J Oh we know that. But anyway, anyway that’s just… D So from what I’m getting is (unintelligible) that at some point you pushed, shoved, bumped Patrick. J There is nobody – you’re going to live a long time. D I hope so. J Until you meet somebody who has helped more people…. (Exhibit P-13, pages 113 - 115) [Emphasis added] [ 142 ] The accused’s habit of playing with the officer, of admittedly making light of Patrick’s death (Exhibit P-13, page 126), may be a coping mechanism, except that he takes it to extremes.

At the same time, he acknowledges having little concern for the truth: J Now let me tell you one more thing. I’m sitting in jail here now. D Mmhmm. J When it, it is finally discovered by 4 kids do you think they’re going to be happy or unhappy about the fact that their dad is in jail? I’ve got two girlfriends, okay… D I think they would be happy to know that you told the truth. J Oh, no they won’t. They – what the – you know, well the truth’s actually irrelevant. The jail is what counts . D Well the truth isn’t irrelevant. J But anyway, anyway well it – I know in your mind… D It, it’s a murder.

It’s not irrelevant. J The truth, the truth is no matter how many people suffer or their, their lives are diminished, or, or, or … D Joe. J …that’s not important. D Joe. J The important thing (unintelligible) D If, if this didn’t happen there’d be no diminishing. J I’m just tell, I’m just telling you I got two girlfriends, right. D Yeah. J One was, was this accident women I was telling you about. D Mmhmm. J And she’s in bad shape. Totally disabled, right. I’ve just in the last few months, she was being exploited and she was in bad shape, okay. D I know you help people Joe. J I found a place for her to stay.

D I know you do. J I’ve given her probably at least $2000.00. D I’ve never said you were a bad person. J And, and I’ve got another, uh, friend who I’m supposed to go there for supper today. D Well I’ve never said you’re a bad person. J And do you think she’s going to be happy about me being… D No, she’s not.

J I don’t know a single person who’s going to be happy about me being in jail . (Exhibit P-13, pages 128-129) [Emphasis added] Decision on the Charge of Offering an Indignity to Human Remains [ 143 ] The accused testified that Patrick was buried by a hired man, while he went swathing. There is no evidence other than the accused’s testimony to support the involvement of a hired man, name unknown.

The notion that the accused, terrified of being wrongfully convicted, would leave a body in the hands of a person he had known briefly has no air of reality. [ 144 ] Like much of his testimony about Patrick’s death, the accused remembers few details about the hired man: who he was, what kind of relationship they had, and why he trusted this man with a damaging secret. Moreover, the accused never expressed surprise the police found only the torso.

He suggested, in fact, that it made sense for the man to cut up the body because it eased the burial process. [ 145 ] In any event, the act of leaving Patrick’s body in a slough, intending it to be buried there, satisfies all elements of this offence. I find the accused guilty of indecently offering an indignity to the human remains of Patrick Cyril Thauberger, on September 3, 1997, contrary to s. 182 (

b) of the Criminal Code . Decision on Murder [ 146 ] As stated earlier, to find the accused guilty of first degree murder, I must find: 1. that the accused committed an unlawful act; 2. that the unlawful act caused Patrick’s death; 3. that the accused had the intent required for murder; and 4. that Patrick’s murder was both planned and deliberate. [ 147 ] The accused told Cliff that he murdered his brother Patrick by hitting him on the head with a hammer and strangling him with a thin rope. He acknowledged that everything he said to Cliff other than his description of the manner of Patrick’s death was true.

When interviewed by police, speaking to family members, or testifying in court, however, the accused asserts that Patrick died by falling down the stairs. [ 148 ] It is not my role to decide which story I believe.

Rather, I must decide whether the Crown has proved, beyond a reasonable doubt, that Patrick’s death was not an accident and that the accused intended to commit the act that caused Patrick’s death, or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. [ 149 ] In addition, to obtain a verdict of first degree murder, the Crown must prove beyond a reasonable doubt that the accused’s act in killing Patrick was planned and deliberate. [ 150 ] In coming to my determination, I will start with whether I believe the evidence of the accused that Patrick fell down the stairs accidently.

I do not believe the accused’s testimony. It is clear he changes his story when it suits him, and according to his audience. It does not suit him to go to jail, so he testified that Patrick died in an accident. [ 151 ] The accused said that he hid his brother’s accidental death to avoid being wrongly convicted of murder.

However, when his worst fears are realized and he is accused of murder, he plays games with the investigating officer, suggesting many things could have happened to Patrick, including that he pushed Patrick down the stairs. [ 152 ] The accused testified that he told Cliff a lie about his brother’s death to impress him into getting $30,000 from him. However, the accused knew that the $30,000 payout would be many years away because A.B. would have to be declared dead before the proceeds of the phony insurance policy could be paid.

Moreover, Cliff never said, as the accused testified, that Cliff asked him to confess to something really “bad”. We have recordings and transcripts of all their interactions. [ 153 ] In fact, Cliff asked him to truthfully explain his brother’s disappearance, so that Cliff could trust him. He also made it clear that he had read a “police file”, which the accused knew would include his claims over 23 years that his brother disappeared after he dropped him off at the bus depot. Yet, the accused does not repeat that story.

He tells another one. [ 154 ] The accused’s testimony is inconsistent with all the other evidence. The evidence of Barbara Hayes is consistent with his story to Cliff, but not his story of an accident. The accused testified that Barbara had a motive to lie about him.

However, he also testified to Barbara’s honesty, saying that if everyone was like Barbara, there would be no need for police. [ 155 ] The accused portrays Barbara as indifferent to Patrick’s “accident” and yet she could not bring herself to come up stairs until after the accused left the house, some nine hours later. [ 156 ] The accused claims that Barbara “completely fabricated” her testimony when she said he told her he “had put Patrick down like a sick dog” and when she testified that he had threatened her. He claimed that Barbara suffered from some minor mental illnesses and was taking pills.

However, he added that he does not “harbour the smallest particle of resentment” that she testified against him because he understood that she did it “to save her hide”. [ 157 ] The difficulty with this theory is that Barbara spoke to the police while under arrest for a charge of assisting the accused by failing to report a murder. Surely, if there had been an accident, Barbara would have said so. It does not require much imagination to suppose that covering up an accident is a lot less serious than covering up a murder.

[ 158 ] When asked by the Crown whether Barbara would perjure herself, the accused said: “Perjure herself? To stay out of jail! Of course, anybody would do that”. [ 159 ] The accused has acknowledged telling many lies over the years about the apparent disappearance of Patrick: 1) He told brother Jim that he drove Patrick to the bus depot and he received a telephone call from him that night.

For 23 years, he let his family believe that Patrick had killed himself or fallen victim to criminal elements. 2) He gave police a written statement on September 16, 1997, (Exhibit P-3) saying he had not heard from Patrick for almost two weeks and he and Patrick’s family were concerned. He began the statement by describing Patrick’s mental health issues and many enemies. 3) Between 1997 and 2020, the accused was spoken to by police on March 22, 2005, October 12, 2006, October 25, 2006, February 23, 2007, November 26, 2010, July 23, 2015 and September 3, 2015.

Throughout all of his interactions with police, the accused’s disclosure about his brother remained consistent with his original written statement, that he last saw Patrick when he dropped him off at or near the Regina bus depot on September 3, 1997. 4) The accused told an interviewer for Crime Stoppers on July 23, 2015 that Patrick could have gone to the United States or to Alberta. 5) In his November 29, 2020 statement to police, he acknowledged that his “theory” that Patrick was dropped off at the bus depot was “the story … up until today”: see Exhibit P-13, page 39. [ 160 ] In addition, the accused acknowledged he lied to this Court in 1988 during his divorce from his first wife.

Moreover, his testimony is replete with internal inconsistencies about Patrick’s mental health in 1997; about Patrick selling land the accused claimed as his in 1997; about whether he was angry that Patrick wanted to see a document; about how Patrick fell down the stairs; and about why he hid Patrick’s body. [ 161 ] Moreover, some of the accused’s claims are preposterous on their face. He said that Patrick fell accidently, but he responded by waiting for him to die, without showing an ounce of concern or providing any assistance.

He testified that he had no choice but to hide Patrick’s body after an accident because he was afraid of a wrongful conviction for murder and then hired a man, whose name he forgets and who disappeared in July 1998, to bury his brother’s body. [ 162 ] Contrary to the accused’s repeated assertions during the trial that he had no motive to kill his brother in 1997, he was clear on other occasions that he wanted to stop Patrick from selling off his land. [ 163 ] The defence argues that the accused did not have time to concoct the accident story when he learned during his police interview in November 2020 of the covert police operation.

Respectfully, he had 23 years to come up with a story should Patrick’s remains surface. [ 164 ] I must conclude that it would be foolhardy to rely on anything the accused has said, in testimony, or elsewhere. Consequently, the next question I must ask myself is whether, considering all the evidence, including the accused’s testimony, I am satisfied beyond a reasonable doubt that he murdered Patrick. [ 165 ] I have no doubt the accused intentionally caused the death of his brother Patrick. As the accused told Barbara, he was proud of what he had done.

Finally, with Cliff, he could tell someone. [ 166 ] The evidence that the accused intentionally caused his brother’s death is overwhelming. The accused was upset that Patrick was selling land the accused believed belonged to him. They negotiated. The negotiations did not go well. Barbara heard a crash and Patrick saying in distress “no, no, no”. [ 167 ] The accused asserted several times in his testimony that he had no motive to kill Patrick. However, on November 29, 2020, he told the officer he did it for his family: D For me like I said in my little synopsis there I gave ya, I think you did it for your family.

I think you did it for the kids and I think you did it to protect what you worked so fucking hard for. J Yes, that is a reasonable supposition. (Exhibit P-13, page 18) [ 168 ] In contrast to the accused’s testimony about Patrick’s fall, his recollection of killing Patrick with a hammer and a rope is detailed and flows logically. It is also consistent with Barbara’s memory of the day. [ 169 ] Patrick died in a manner that the accused wanted to hide, so he dismembered his body.

He ensured, as he told the officer on November 29, 2020, that they would discover nothing if they exhumed Patrick’s remains in the slough: J I will guarantee you that if you exhume his remains. D Yeah. J You will learn nothing about how he died. Nothing. Zero. D Why?

J 100% D Why? What did you do to him? J Anyway. Huh? D What did you do to him? Do make… J It’s not what I did to him it’s just that there’s no evidence there .

D Well… J That will answer any of the questions . (Exhibit P-13, page 143) [Emphasis added] [ 170 ] The only conclusion that satisfies all the evidence is the deliberate murder of Patrick by blows to the head and strangulation, dismemberment of the skull and limbs from Patrick’s body, and disposal of the missing body parts, perhaps with a tractor and a discer as the accused told Barbara. [ 171 ] The last question for me to answer is whether Patrick’s murder was planned and deliberate.

The defence argues that there is no evidence of a plan, although the accused told Cliff he had the hammer and rope ready in case his negotiations with Patrick did not go well. On the other hand, pl

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