ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0103-BR
DATE: 2014-12-23
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. P. Pasloski, for the Respondent
Respondent
- and -
ALEXANDER GEESIC
Mr. D. Kiesman, for the Applicant
Applicant
HEARD: December 18 , 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Reasons On Application
[1] This is an application by the accused, Alexander Geesic, pursuant to s. 520 of the Criminal Code, for review of the detention order made by Justice of the Peace, B. Caron, on October 31, 2014.
[2] The detention order was made on the secondary ground set out in s. 515 (10) of the Criminal Code, namely that there was a substantial likelihood that Mr. Geesic would, if released from custody, commit a criminal offence.
BACKGROUND
[3] Mr. Geesic is charged with robbery of a gas station on October 2, 2104, while armed with a knife, robbery of a convenience store on October 13, 2014 while armed with a knife, having his face masked with intent to commit the armed robbery of October 13, 2014, and two breaches of a probation order made on October 2, 2013, for failing to keep the peace and be of good behaviour, related to the robbery charges.
[4] Mr. Geesic was identified as the perpetrator of both robberies through video surveillance and a photo lineup. The Crown alleges that a witness who reviewed the photo lineup knew Mr. Geesic and recognized Mr. Geesic while he was being robbed. The defence submits that the photo lineup was seriously flawed and that the police have had “tunnel vision” in focusing on Geesic.
[5] Mr. Geesic has an extensive criminal record. The record for Mr. Geesic filed on the bail review shows more than 50 convictions as an adult during the past 14 years. Of those convictions, approximately 25 are for breaches of undertakings, recognizances and probation. His convictions include offences of violence and, in particular, two convictions for robbery with violence in 2009 and one conviction for robbery with violence in 2011. His record prior to 2000 includes approximately 20 convictions as a young offender, of which five were for failing to comply with undertakings or court orders.
[6] The defence put forward a surety, Ms. Marilyn Tangie, who was residing with Mr. Geesic at the time of the offences. At the time of the bail hearing, Ms. Tangie was also acting as a surety for her son who had been charged with theft under $500.00. Ms. Tangie is 37 years of age and attends the Lakehead Adult Education Centre. Mr. Geesic is also a student at the center. Ms. Tangie had previously acted as a surety for Mr. Geesic in January 2014. She pulled her surety in February 2014 when Mr. Geesic did not meet her at a pre-arranged time. She went back on as surety for Mr. Geesic in April or May 2014. Ms. Tangie owns a home in Chapleau, Ontario which she said was worth approximately $20,000.00. At the bail hearing, Ms. Tangie was asked in cross-examination about whether or not she had a criminal record. She testified that her only conviction was theft under $5000.00. However, on the bail review hearing she admitted that she also had a conviction in 2012 for possession of a controlled substance, a conviction for theft under in 1998 and another conviction for theft under in 1995.
[7] Ms. Tangie testified that she will provide an alibi statement for Mr. Geesic relating to the robberies of October 2 and October 13, 2104.
[8] Ms. Tangie testified that she had lived with Mr. Geesic since February 2012.
[9] At the bail review hearing, Ms., Tangie testified that she no longer was acting as a surety for her son, who had disposed of his charge. She remained prepared to act as a surety for Mr. Geesic.
REASONS OF THE JUSTICE OF THE PEACE
[10] At the bail hearing, the Justice of the Peace commented on the fact that Ms. Tangie was acting as a surety for her son. He observed that it was therefore not appropriate that she should also act as a surety for Mr. Geesic.
[11] The Justice of the Peace added that although Ms. Tangie had faith in Mr. Geesic, he did not share that same faith. The reasons of the Justice of the Peace for denying bail on the secondary ground were as follows:
“He has a lengthy, lengthy criminal record. He has numerous breaches. He has numerous violence charges, he has breached when on parole. He has crimes that he was found guilty in similar nature. We have charges back to 2014, and the year is not even finished, for which he was…one, two, and three, and four charges that he faced in 2014. Glancing at 2013, I believe it is because in 2012, he was in jail since 2012, so for that reason I do not share the same faith the Mrs. Tangie has with Mr. Geesic. There is a substantial likelihood that he will re-offend. It is a case that the Crown has a certain strength in it. I am not going to the tertiary ground.”
SUBMISSIONS OF THE DEFENCE
[12] The defence submits that there has been a material change in circumstances since the detention order was made on October 31, 2014 in that Ms. Tangie is no longer a surety for her son. The defence submits that she is now in a much better position to supervise Mr. Geesic.
[13] The defence submits that Ms. Tangie is prepared to pledge any amount as a surety, noting that she has a house in Chapleau which she says is worth $20,000.00. The defence submits that Ms. Tangie is in a position to supervise Mr. Geesic both in her home and at the Lakehead Adult Education Centre where they are both students.
[14] The defence submits that there are triable issues with respect to how the photo lineup was performed in that the officer conducting the photo lineup for the second robbery was also investigating the first robbery.
[15] The defence notes that Mr. Geesic has applied himself to his education and is one exam away from obtaining his grade 11.
SUBMISSIONS OF THE CROWN
[16] The Crown submits that the Justice of the Peace denied bail not because Ms. Tangie was acting as a surety for her son, but because Mr. Geesic’s lengthy criminal record gave him reason to believe that there was a substantial likelihood that he would re-offend.
[17] The Crown submits that the fact that Ms. Tangie is no longer a surety for her son is a change, but not a material change and that the validity of the findings of the Justice of the Peace on the secondary grounds continue regardless of Ms. Tangie’s willingness to be a surety. The Crown submits that, in any event, Ms. Tangie is not a reliable witness because of her failure to truthfully disclose her criminal record to the Justice of the Peace.
[18] The Crown submits that its case against Mr. Geesic is strong because there is a witness to one of the robberies who says he knows Mr. Geesic and recognizes him as the person who committed the robbery.
DISCUSSION
[19] The standard of review on an application under S. 520 of the Criminal Code was set out by Hill, J in R v. Reid, [2000] O.J. No. 3606 (S.C.J.), at para 7:
“A detention review pursuant to s. 520 of the Code is not a de novo hearing. The application for review must establish an error in principle in the reasoning of the show cause justice and/or a material change in circumstances sine the original proceedings.”
[20] I do not find that the Justice of the Peace erred in principle. I do not find that the defence has established a material change in circumstances. Moreover, even if the fact that Ms. Tangie is no longer a surety for her son does constitute a material change in circumstances, I find that Mr. Geesic should nevertheless be detained on the secondary ground.
[21] The Justice of the Peace focussed quite properly on the lengthy criminal record of Mr. Geesic as his reason for finding that there was a substantial likelihood that Mr. Geesic would re-offend. The approximately 50 convictions which Mr. Geesic has over the past 14 years, as an adult, are extreme in number. Added to this, the fact that, of those convictions, more than 25 are for breaches of court orders and undertakings, gave the Justice of the Peace more than enough reason to determine that there was a substantial likelihood that Mr. Geesic would re-offend while on bail, which could not be overcome by naming Ms. Tangie as a surety. Such an extensive number of breaches of undertakings, recognizances and probation are of overwhelming importance in predicting future criminal behaviour while on bail.
[22] Three of Mr. Geesic’s 25-plus breaches were as recent as this year. Mr. Geesic has demonstrated repeatedly that he will not obey court orders.
[23] Although the Justice of the Peace referred to the fact that Ms. Tangie was acting as a surety for her son and therefore, in his view, was not a suitable surety for Mr. Geesic, his observations were incidental to his reason for detaining Mr. Geesic which was because of Mr. Geesic’s criminal record.. The Justice of the Peace stated that he did not share Ms. Tangie’s faith in Mr. Geesic.
[24] The fact that Ms. Tangie is no longer a surety for her son is not material given the reason why Mr. Geesic was detained, namely his past criminal behaviour.
[25] Even if I were to find that, because Ms. Tangie is no longer a surety for her son, there has been a material change in circumstances, I would nevertheless come to the same conclusion as did the Justice of the Peace. Ms. Geesic’s record overwhelms any confidence that one might otherwise have that Ms. Tangie could effectively control Mr. Geesic’s behaviour.
[26] Although Ms. Tangie said that she and Mr. Geesic had lived together since February 2012, in fact, as the Crown pointed out, and Ms. Tangie agreed, of the 1082 days since February 2012, Mr. Geesic has spent 601 of those days in custody.
[27] I also have concerns about Ms. Tangie’s reliability as a witness and, by extension, as a surety for Mr. Geesic. She misled the Justice of the Peace when asked about her own criminal record, advising of only one conviction for theft under, in 2011, when, in fact, more recently in 2012 she had been convicted of possession of a controlled substance and had two more convictions for theft under in 1998 and 1995.
[28] I have taken into consideration the arguments advanced by the defence that the Crown’s case is weakened by alleged flaws in the photo lineup. However, these arguments were countered by the Crown’s allegations of an eye witness to the robbery who was personally acquainted with Mr. Geesic prior to the event. At this stage the Crown’s case is reasonably strong.
[29] I also take into consideration the serious nature and circumstances of the robberies with which Mr. Geesic is charged, both occurring in the early hours of the morning, in which a vulnerable individual in a gas station and, 11 days later, a vulnerable individual at a convenience store were both threatened with a knife. As noted in Trotter, The Law of Bail in Canada (Toronto Carswell 2014, 3rd ed), at p 3-22:
“Although the accused person must be presumed innocent of the index offence, it cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability.”
CONCLUSION
[30] For the reasons given, the application to set aside the detention order of October 31, 2014, is dismissed.
The Hon. Mr. Justice D. C. Shaw
Released: December 23, 2014
COURT FILE NO.: CR-14-0103-BR
DATE: 2014-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ALEXANDER GEESIC
Applicant
REASONS ON APPLICATION
Shaw J.
Released: December 23, 2014
/nf