R. v. Geesic, 2010 ONCA 365

CITATION: R. v. Geesic, 2010 ONCA 365

DATE: 20100518

DOCKET: C48380

COURT OF APPEAL FOR ONTARIO

Moldaver, LaForme and Rouleau JJ.A.

BETWEEN:

Her Majesty The Queen

Appellant

And

Alexander Geesic a.k.a. Alexander Basketwang

Respondent

Joanne Stuart, for the appellant

S. George Joseph, for the respondent

Heard and released orally: May 12, 1020

On appeal from acquittal by Justice D. Pettit Baig of the Ontario Court of Justice, dated January 24, 2008.

ENDORSEMENT

[1] This is a Crown appeal. The respondent was acquitted on one count of robbery and two counts of breach of probation. The Crown has raised several grounds of appeal which we propose to comment on briefly. In the end, for reasons that follow, we would allow the appeal and order a new trial.

[2] Turning to the errors, the trial judge impermissibly altered the substance of the reasons she delivered orally in court as transcribed by the court reporter. This was especially troublesome here as the editing occurred after the Crown had filed its Notice of Appeal. For obvious reasons, this is unacceptable and should not occur.

[3] The trial judge also conjured out of whole cloth the issue of the accused’s identity in the videotaped interview with D.C. Anderson. The issue of whether the accused was the person providing the statement to D.C. Anderson was not raised by the defence. Indeed, it was effectively admitted by defence counsel whose sole concern related to the second portion of the statement and whether it was voluntary. In conceding that the first part of the statement was not in issue and that voluntariness was an issue only in relation to the second part, defence counsel must be taken to have accepted that the accused was the person being interviewed.

[4] If there was any ambiguity on defence counsel’s motion, the Crown should have been permitted to call evidence to address the matter. This was not a case in which the Crown had neglected by oversight to prove an essential aspect of its case. Here, the Crown quite properly took it as a given that the defence was not challenging the accused’s identity as the person D.C. Anderson was interviewing.

[5] Finally, the trial judge erred in failing to compare the likeness of the accused in the interview with the likeness of the accused seated before her. She was apparently unaware of R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, and to the extent that it mattered, as it did in this case, she should have taken submissions from counsel.

[6] The respondent concedes the foregoing errors but submits that we should sustain the acquittals on the basis that the respondent’s statement is ambiguous and that no trial judge acting reasonably could base a conviction on it. We disagree. In our view, a trial judge could find the respondent guilty of the May Street robbery on the basis of his statement together with the other evidence. It follows that the Crown has met its onus of showing to a reasonable degree of certainty that the verdicts would not necessarily have been the same had the errors not been made.

[7] Accordingly, the appeal is allowed, the verdicts of acquittal are set aside, and a new trial is ordered on all counts.

Signed: “M. J. Moldaver J.A.”

“H. S. LaForme J.A.”

“Paul Rouleau J.A.”