Court of Appeal for Ontario

Date: 2018-11-28 Docket: C63946

Judges: Pepall, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Emilio Georgiev Appellant

Counsel

Paul Calarco, for the appellant

Jennifer Trehearne, for the respondent

Heard: November 20, 2018

Appeal Information

On appeal from the convictions entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on November 9, 2016, and from the sentence imposed on March 24, 2017, with reasons reported at 2017 ONSC 1265.

Reasons for Decision

Conviction Appeal

[1] The trial judge accepted Emilio Georgiev's guilty plea to the offence of breach of recognizance. Mr. Georgiev was also convicted by jury for the offences of robbery, assault causing bodily harm, aggravated assault, uttering a threat to cause death and possession of a weapon for a purpose dangerous to the public peace ("weapon dangerous"). During the trial involving the slashing and robbery of a 57 year old blind male complainant, identity was the only issue. The sole witness to the crime was the complainant.

[2] The crimes occurred when the complainant was accosted after bumping into a car with his cane. The assailant slashed the complainant's neck with a knife, threatened to stab him, and took money and other things from his wallet. The assailant referred to the car as "my car". Shortly after the knife attack and robbery, the complainant was able to describe the location of the car to the police. The only car at that location proved to belong to Mr. Georgiev's mother. It was parked near a residence that Mr. Georgiev was visiting at the time of the crimes. Contents of the complainant's wallet were found in the garbage behind the residence and his white cane was found leaning against the residence itself. An associate of Mr. Georgiev, Tyler York, described seeing Mr. Georgiev inside the residence after Mr. York had initially gone to bed. He said Mr. Georgiev was wearing a mask and washing something in the sink, saying, "fuck that guy, fuck that guy".

[3] Mr. Georgiev defended himself in part by presenting Mr. York as an alternative suspect. He raises several grounds of appeal from these convictions, all but one of which relate to the sufficiency of the jury charge.

Alternative Suspect Defence

[4] Mr. Georgiev's first ground of appeal is that the trial judge failed to set out adequately the evidence related to the alternative suspect. Both Mr. Georgiev and Mr. York met the general physical descriptors the complainant was able to provide. Mr. Georgiev contends that this was not driven home adequately by the trial judge, and he points to several items of circumstantial evidence that he claims should have been linked directly by the trial judge to the alternative suspect issue.

[5] Despite the able submissions, we find no error here. The case was lengthy, but straightforward. The only contested issue was whether the Crown could identify the accused beyond a reasonable doubt, and the alternative suspect defence was inextricably linked to the Crown's identification case. The key points of evidence identified by Mr. Georgiev were included in the charge in a fashion that enabled the jury to fully appreciate the value and effect of the evidence on the alternative suspect issue, including that the limited physical descriptions provided by the complainant, taken alone, could not rule out the alternative suspect. We are satisfied that when the charge is viewed functionally, the jurors would have adequately understood the alternative suspect issue, the governing law, and the evidence they should consider in resolving this question. Although not determinative, we note that the appellant did not object to the trial judge's charge in this regard.

Vetrovec Charge

[6] We also find the Vetrovec charge to have been sufficient. That charge adequately reviewed problems with Mr. York's evidence. Although the trial judge did not mention in her Vetrovec charge that no mask was found at the residence, or advert to Mr. York's lies to the police, these points were made elsewhere in the charge. In this straightforward case we are satisfied that the jury would have given these points consideration.

[7] Nor are we troubled by the trial judge's passing reference to the consistency of Mr. York's testimony. This was mentioned by the trial judge when alerting the jury to the inconsistency in some of Mr. York's statements to the police, and provides fair context in evaluating the inconsistency claim.

Reasonable Doubt and Alternative Suspect

[8] We find no error in the trial judge's comment that a reasonable doubt can be left by evidence that "shows or tends to show that Tyler York committed the offences with which Emilio Georgiev is charged, taken together with the rest of the evidence". It is true that reasonable doubt raised by an alternative suspect theory is enough on its own to command an acquittal, however, a jury is obliged when determining whether they have a reasonable doubt to consider the evidence as a whole. This direction says no more than that.

Weapon Dangerous Conviction

[9] Mr. Georgiev also challenges his conviction of weapon dangerous, contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 88(1). He says that there is no evidence that before the knife was used in a dangerous manner, it was possessed for a dangerous purpose. We disagree, even leaving aside that Mr. Georgiev admitted this element of the offence at trial. Assuming the knife was not possessed for a dangerous purpose before the complainant's throat was slashed, the assailant continued to possess the knife while following the complainant down the street before accosting him a second time. The crime is made out.

[10] We would therefore deny Mr. Georgiev's conviction appeal.

Sentence Appeal

[11] Mr. Georgiev also seeks leave to appeal his sentence, claiming that it was illegal, contrary to the rule against multiple convictions, unduly long, and that it was imposed contrary to proper sentencing principles.

Illegal Sentence

[12] We accept, as does the Crown, that a concurrent sentence of seven years was an illegal sentence for the uttering a threat to cause death and breach of recognizance convictions, since seven years exceeds the maximum sentences for those offences.

Kienapple Principles

[13] We also agree with the Crown's concession that the trial judge erred in not staying the aggravated assault and weapon dangerous convictions pursuant to the principles outlined in Kienapple v. R., [1975] 1 S.C.R. 729.

[14] We do not agree with Mr. Georgiev, however, that the uttering a threat to cause death conviction also had to be stayed. The robbery charge was based on the specific allegation that Mr. Georgiev stole and immediately thereafter used violence, contrary to Criminal Code, s. 343(b). The robbery charge was not based on an allegation of robbery by threat of violence contrary to Criminal Code, s. 343(a). The death threat therefore adds an additional element to the robbery conviction, capable of supporting an additional conviction.

Fitness of Sentence

[15] We do not accept that the seven year global sentence was unfit or arrived at contrary to principle. The relevant circumstances and principles were considered by the trial judge, and based on those circumstances and principles, the robbery conviction alone warranted a seven year sentence. We would not interfere.

Disposition

[16] We therefore dismiss the conviction appeal, but impose a stay on the aggravated assault and weapon dangerous convictions. We grant leave to appeal sentence and vary the sentence on the uttering a threat to cause death conviction contrary to Criminal Code, s. 264.1(1)(a) to 18 months concurrent. We also vary the sentence on the breach of recognizance conviction contrary to Criminal Code, s. 145(3)(a) to three months concurrent. We dismiss the sentence appeal from the robbery conviction and affirm the global sentence of 7 years, less 771 days' credit for pre-sentence custody.

"S.E. Pepall J.A."

"David M. Paciocco J.A."

"Harvison Young J.A."