



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Georgiev, 2018 ONCA 961

DATE: 20181128

DOCKET: C63946

Pepall, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emilio Georgiev

Appellant

Paul Calarco, for the appellant

Jennifer Trehearne, for the respondent

Heard: November 20, 2018

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

[1]

The trial judge accepted Emilio Georgievs 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 complainants 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. Georgievs
    mother. It was parked near a residence that Mr. Georgiev was visiting at the
    time of the crimes. Contents of the complainants 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.

[4]

Mr. Georgievs 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 Crowns 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
    judges charge in this regard.

[6]

We also find the
Vetrovec

charge to have been sufficient.
    That charge adequately reviewed problems with Mr. Yorks evidence. Although the
    trial judge did not mention in her
Vetrovec

charge that no mask
    was found at the residence, or advert to Mr. Yorks 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 judges passing reference to the consistency
    of Mr. Yorks testimony. This was mentioned by the trial judge when alerting
    the jury to the inconsistency in some of Mr. Yorks statements to the police,
    and provides fair context in evaluating the inconsistency claim.

[8]

We find no error in the trial judges 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.

[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 complainants 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. Georgievs conviction 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.

[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.

[13]

We
    also agree with the Crowns 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.

[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.

[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.


