Court of Appeal for Ontario
Date: June 6, 2018 Docket: C64222
Judges: MacPherson, Hourigan and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Devante George-Nurse Appellant
Counsel
- 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 mother's 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 Maxima's 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 Maxima's 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 Barrow's 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 appellant's 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 appellant's cell phone did not provide any evidence that he contacted someone to pick him up before the SUV arrived at 237 Roywood. Despite Mr. Foster's 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 mother's 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 mother's 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 mother's 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. Foster's 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 driver's 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 respondent's 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 accused's silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal. However, the accused's 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; 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 accused's 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 Crown's 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 colleague's 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-girlfriend's home at unit 237 of a housing complex;
During the night, the car he brought (his mother's) had its tires slashed. The car's 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-girlfriend's 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 mother's 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 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 Foster's life.
[29] Given the time frame in which the events captured by security cameras unfolded (2:10-2:40 p.m.), the appellant's 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 jury's 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 Foster's 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 accused's 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-girlfriend's mother); had gone to Foster's 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 appellant's 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 judge's 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 jury's 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."
Footnotes
[1] Reversed on unrelated grounds: 2013 SCC 61, [2013] 3 S.C.R. 694.
[2] I agree with my colleague's 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 appellant's mother's car.
