



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. George-Nurse, 2018 ONCA 515

DATE: 20180606

DOCKET: C64222

MacPherson, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devante George-Nurse

Appellant

Devante George-Nurse, appearing in person

Brian Snell, appearing as duty counsel

Deborah Calderwood, for the respondent

Heard: May 9, 2018

On appeal from the conviction entered on May 31, 2017 by
    Justice Sean Dunphy of the Superior Court of Justice, sitting with a jury.

Hourigan J.A. (Dissenting):

Introduction

[1]

The appellant was convicted by a jury of one count of intentionally discharging
    a firearm while reckless as to the life or safety of another person (
Criminal
    Code
, s. 244.2(1)(b)) and one count of occupying a motor vehicle while
    knowing there was a firearm in the vehicle (s. 94(1)). He appeals his
    convictions on the ground that they are unreasonable. I agree, and would
    therefore allow his appeal on both offences.

Facts

[2]

On the evening of August 12, 2015, the appellant borrowed his mothers
    Nissan Maxima and drove to 237 Roywood Drive to visit his god sister and
    Rikisha Reddon Barrow, an ex-girlfriend.

[3]

At some point overnight, the Maximas tires were slashed and the windshield
    was damaged. Ms. Reddon Barrow advised the appellant that Shakur Foster, her
    former boyfriend, had slashed the tires. Witnesses testified that the appellant
    was angry when he learned that the Maximas tires had been slashed, although
    the Crown and defence drew different inferences about how angry the appellant
    had become.

[4]

There were security cameras at the Roywood complex and they captured the
    following events on August 13.

[5]

At 2:10 p.m., the appellant exited 237 Roywood while Connie Reddon, Ms. Reddon
    Barrows mother, tried to restrain him. Ms. Reddon testified that she was
    trying to prevent the appellant from going to 239 Roywood to confront Mr.
    Foster. The appellant returned to 237 Roywood after the confrontation.

[6]

At around 2:40 p.m., a black SUV arrived at the Roywood complex parking
    lot. Within seconds, the appellant emerged from 237 Roywood with his backpack.
    The appellant boarded the SUV through the front passenger side door. The SUV then
    left the parking lot and returned to the lot in reverse. The video surveillance
    shows the appellant then exit the SUV and retrieve something in a bag from the
    Maxima. There was no evidence to suggest that either that bag or the
    appellants backpack contained a gun.

[7]

The appellant got back into the SUV and it exited the parking lot. The SUV
    stopped in the street in front of a pathway leading to a playground between 235
    and 239 Roywood. Mr. Foster was standing in the backyard of 239 Roywood. The
    driver of the SUV fired several shots and then sped off. Mr. Foster testified
    that he heard a ricochet off the fence in the backyard where he was standing.

[8]

There was no evidence regarding the identity of the SUV driver. A search
    of the appellants cell phone did not provide any evidence that he contacted
    someone to pick him up before the SUV arrived at 237 Roywood. Despite Mr.
    Fosters testimony, no bullet was located in the backyard. A shell casing was
    found in the street.

Trial

[9]

The Crown did not allege that the appellant had fired the gun. Its
    theory was that the appellant counselled the SUV driver to shoot at or near Mr.
    Foster as retaliation for the damage done to his mothers car. The Crown
    conceded that there was no direct evidence of counselling and instead invited
    the jury to infer counselling from a number of facts, including: the appellant
    was one of only two people in the SUV, the shooting was directed at Mr. Foster
    who the appellant had been told slashed his mothers tires, and the appellant
    knew where Mr. Foster was located.

[10]

The
    defence suggested that the circumstantial evidence was consistent with a number
    of possibilities other than the appellant having counselled the driver to shoot.
    One possibility the defence put forward was that the appellant told the driver
    about the damage to his mothers car and the driver took it upon himself to
    avenge the appellant without any counselling.

[11]

The
    jury convicted the appellant of the two counts appealed from and acquitted him of
    intentionally discharging a firearm with the intent to endanger Mr. Fosters
    life.

Analysis

(i)

Counselling Discharge of a Firearm

[12]

When
    assessing whether a verdict was reasonable, an appellate court asks whether, on
    the whole of the evidence, the verdict is one that a properly instructed jury,
    acting judicially, could reasonably have rendered. The court does not ask
    whether it would have convicted the appellant, but whether the verdict is
    supportable on any reasonable view of the evidence:
R. v. McCracken
,
    2016 ONCA 228, 348 O.A.C. 267, at paras. 23-24.

[13]

The
    case against the appellant on this count was based entirely on circumstantial
    evidence. The Crown provided a plausible narrative to support its contention
    that the appellant counselled the SUV driver to shoot at Mr. Foster. However,
    in cases where the proof of one or more of the elements of the offence depends
    exclusively or largely on circumstantial evidence, an inference of guilt must
    be the only reasonable available inference. This ensures that the trier of fact
    will not fill in the blanks in the evidence by overlooking reasonable
    alternative inferences:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 30.

[14]

In
    the case at bar, there was no evidence that the appellant summoned the SUV
    driver. There was also no evidence regarding what was said, if anything,
    between the appellant and the SUV driver. Did the appellant counsel the driver
    to shoot at Mr. Foster? It is possible that that was exactly what he did. But
    it is also possible that it was the drivers intention to shoot at Mr. Foster
    without any counselling from the appellant.

[15]

In
    oral submissions, the Crown says that any alternative inference is entirely speculative
    because it lacks evidential support. In
Villaroman,
at para. 36, Justice
    Cromwell, writing for the court, rejected a similar argument:

I agree with the respondents position that a
    reasonable doubt, or theory alternative to guilt, is not rendered speculative
    by the mere fact that it arises from a lack of evidence. As stated by this
    Court in
Lifchus
,

a reasonable doubt is a
    doubt based on reason and common sense which must be logically based upon the
    evidence
or lack of evidence
: para. 30 (emphasis added). A certain gap
    in the evidence may result in inferences other than guilt. But those inferences
    must be reasonable given the evidence and the absence of evidence, assessed
    logically, and in light of human experience and common sense.

[16]

As
    the court noted in
Villaroman,
at para. 38, the distinction between a
    plausible theory and speculation may sometimes be fine. The trier of fact is
    required to look logically at the evidence or absence of evidence, in light of
    human experience, to determine whether an inference other than guilt may reasonably
    be drawn.

[17]

The
    fact that the appellant did not testify to offer a plausible alternative
    version of events is of no assistance to the Crown in this case. Appellate courts
    may refer to an accuseds silence as indicative of an absence of an exculpatory
    explanation when considering an unreasonable verdict argument on appeal.
    However, the accuseds failure to testify is generally relevant only in cases
    where the Crown has adduced a compelling body of evidence:
R. v. Noble
, [1997] 1 S.C.R. 874, at para. 103.

[18]

In
R. v. LePage
,

[1995] 1 S.C.R. 654
, at paras. 29-30, a majority of the Supreme
    Court of Canada endorsed the following statement from
R. v.
    Johnson
(1993), 12 O.R. (3d) 340 (C.A.): No adverse
    inference can be drawn if there is no case to answer. A weak prosecution's case
    cannot be strengthened by the failure of the accused to testify. See also
R.
    v. Hay
, 2009 ONCA 398, 249 O.A.C. 24, at para. 37
[1]
; and
R. v. Tremble
,
2017 ONCA 671,
    354 C.C.C. (3d) 27, at para. 98.

[19]

Thus, while the jurisprudence makes clear that the accuseds failure to
    testify may be taken into account in assessing whether there is an innocent
    inference available, it would make little sense to factor in that failure when reasonable
    innocent explanations are already apparent by looking at the gaps in the
    Crowns case. In
the case at bar, the evidence against the appellant
    that he had counselled the SUV driver to shoot at Mr. Foster was weak. It would
    have been foolhardy for any competent defence lawyer to advise a client to
    testify in these circumstances. There was simply no need to call evidence to
    support an alternative version of events.

[20]

In
    my view, there was a lacuna in the evidence such that no trier of fact acting
    reasonably could have concluded that there was no reasonable inference other
    than guilt.

(ii)

Occupying
    a Motor Vehicle

[21]

The foregoing analysis is equally applicable to the conviction on
    occupying the vehicle with knowledge of the gun, which was also based entirely
    on circumstantial evidence. There were innocent explanations available to the
    jury on the evidence and lack of evidence adduced at trial.

[22]

There was no evidence to support any suggestion that the appellant
    brought the gun into the SUV himself. It is impossible to say with any degree
    of certainty when the appellant became aware of the presence of the gun in the SUV.
    There was also no evidence whether, knowing that the gun was present, he had
    any feasible opportunity to exit the SUV. At the time of the shooting, the
    appellant was obviously aware of the presence of the gun, but the video
    surveillance showed that the vehicle left the area at high speed, which would
    make it impossible for him to safely exit the SUV. There was no evidence of
    what happened thereafter.

[23]

In my view, no properly instructed jury, acting judicially, could reasonably
    have convicted the appellant on this count.

Disposition

[24]

For
    the foregoing reasons, I would allow the appeal, quash the convictions, and
    enter acquittals in their place.


C.W. Hourigan J.A.


MacPherson J.A.:

[25]

I
    have had the opportunity to read my colleagues reasons in this appeal. With
    respect, I do not agree with his analysis or his proposed disposition. I would
    dismiss the appeal and affirm the convictions on both counts.

Analysis

[26]

I
    agree with the starting point my colleague identifies in his reasons. When
    assessing whether a verdict is unreasonable, the crucial question is whether
    the verdict is supportable on
any
reasonable view of the evidence:
R.
    v. McCracken
, 2016 ONCA 228, at paras. 24.

[27]

The
    evidence at trial established the following:

·

The appellant spent a night at his ex-girlfriends home at unit
    237 of a housing complex;

·

During the night, the car he brought (his mothers) had its tires
    slashed. The cars windshield was later damaged as well;

·

The ex-girlfriend informed the appellant that another
    ex-boyfriend, Shakur Foster, had slashed the tires. Foster lived at unit 239 of
    the same housing complex;

·

Witnesses testified that the appellant was angry;

·

Security cameras recorded the appellant leaving unit 237 at about
    2:10 p.m. His ex-girlfriends mother tried to restrain him. She failed. She
    testified that she was trying to prevent him from going to unit 239;

·

The appellant went to unit 239 and confronted Foster. The
    confrontation was not captured by security cameras;

·

The appellant returned to unit 237 after the confrontation. He
    was still angry;

·

At about 2:40 p.m., a black SUV arrived at the housing complex
    parking lot. The appellant came out of unit 237 with a backpack and immediately
    entered the vehicle;

·

The SUV left the parking lot, but immediately returned. The
    appellant got out, went to his mothers car, retrieved a bag, and returned to
    the SUV;

·

The SUV left the parking lot a second time and stopped almost
    immediately near unit 239. The driver of the SUV fired four shots and then sped
    off; and

·

Foster, who was standing in the backyard of unit 239, testified
    that he heard a ricochet off the fence. A shell casing was found in the street.

[28]

The
    jury convicted the appellant of intentionally discharging a firearm while reckless
    as to the life or safety of another person
[2]
and occupying a motor vehicle while knowing there was a firearm in the vehicle.
    The jury acquitted the appellant of intentionally discharging a firearm with
    the intent to endanger Fosters life.

[29]

Given
    the time frame in which the events captured by security cameras unfolded
    (2:10-2:40 p.m.), the appellants condition (demonstrably angry), his conduct
    (confronting Foster at his home), and the final constellation of criminal
    activity (a car arrives, the appellant immediately enters it, and the driver
    almost immediately fires four shots in the vicinity of Foster), I think the
    jurys verdicts on the three counts are reasonable.

[30]

Presumably,
    the jury determined that the appellant counselled the unknown driver to fire
    shots in the vicinity of Foster and was in the car when the driver did so.
    However, the jury was not convinced beyond a reasonable doubt that the shooter
    intended to endanger Fosters life, possibly because of the lack of ballistic
    evidence about where the four shots struck. In my view, this is an entirely
    reasonable set of verdicts for the jury to have rendered.

[31]

My
    colleague emphasizes that since the case against the appellant was based
    entirely on circumstantial evidence, an inference of guilt must have been the
    only reasonable available inference: see
R. v. Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 30. He determines that there was another
    reasonable inference available in this case: that the driver intended to shoot
    at Foster without any counselling from the appellant.

[32]

However,
    I note that the appellant did not testify at trial. In my view, his failure to
    testify negates the alternative inference my colleague identifies.

[33]

As
    recognized by my colleague, appellate courts may refer to an accuseds silence
    as indicative of an absence of an exculpatory explanation when considering an
    unreasonable verdict argument on appeal:
R. v. Noble
,
    [1997] 1 S.C.R. 874, at para. 103
. However, relying on
R. v. Lepage
,
    [1995] 1 S.C.R. 654, at paras. 29-30, my colleague concludes that no adverse
    inference can be drawn from the appellant not testifying in this case because
    there was no case to answer.

[34]

With
    respect, I disagree. The facts I set out above established a strong case to
    answer, namely, that the appellant: was angry; had already overcome persuasion
    and resistance (his ex-girlfriends mother); had gone to Fosters home and
    confronted him; very soon thereafter (several minutes at most) joined a man he
    knew in a car who had a firearm; and participated in an enterprise in which
    four shots were fired near Foster and his backyard. In my view, this is a
    paradigm of a case to meet, far removed from no case to answer.

[35]

This
    court is therefore entitled to consider the appellants failure to testify in
    assessing whether an innocent inference was available:
Noble
, at para. 103.

[36]

The
    appellant was in the car during the events in question. He obviously knows who
    the driver/shooter was. He also obviously knows what happened leading up the
    shooting. Yet, he did not provide an innocent explanation at trial. It was not
    unreasonable for the jury to consider this and conclude there was no
exculpatory explanation or innocent inference available.

[37]

I
    make a final point. Appellate courts should be very cautious about declaring a
    jury verdict unreasonable. By definition, this issue is only considered if a
    criminal trial has been a fair trial from start to finish and if the trial
    judges jury charge is unimpeachable. In this context, it is no light thing to
    conclude that a unanimous verdict of 12 jurors is unreasonable, that is, not
    supportable on
any
reasonable view of the evidence:
McCracken
, at para. 24 (emphasis in original)
. In
    my view, the jurys verdicts in this case are far removed from deserving this
    label.

[38]

I
    would dismiss the appeal.

Released: J.C.M. June 6, 2018

J.C. MacPherson J.A.

I agree. B.W. Miller J.A.





[1]

Reversed on unrelated grounds: 2013 SCC 61, [2013] 3 S.C.R.
    694.



[2]

I agree with my colleagues explanation of this count  the
    Crown theory was that the appellant counselled the SUV driver to shoot at or
    near Foster as retaliation for the damage done to the appellants mothers car.


