R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570

Case Summary

The appellant was convicted by jury of intentionally discharging a firearm while reckless as to the life or safety of another person and occupying a motor vehicle knowing there was a firearm present. He did not testify at trial. On appeal to the SCC, the appellant argued unreasonable verdict based on circumstantial evidence. The Court held that the strong circumstantial case permitted the Court of Appeal to consider the appellant's silence when assessing his unreasonable verdict argument, and affirmed that the trial judge's clear jury instructions against using silence as a makeweight for the Crown preserved the accused's right to silence. Appeal dismissed and convictions upheld.

Supreme Court of Canada

R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570

Parties

Between:

Devante George-Nurse Appellant

and

Her Majesty The Queen Respondent

— and —

Criminal Lawyers' Association Intervener

Coram

Abella, Moldaver, Karakatsanis, Côté and Rowe JJ.

Reasons for Judgment: (paras. 1 to 4)

Moldaver J. (Abella, Karakatsanis, Côté, and Rowe JJ. concurring)

Indexed As

R. v. George-Nurse

2019 SCC 12

File No.: 38217.

2019: February 15.

Present: Abella, Moldaver, Karakatsanis, Côté and Rowe JJ.

on appeal from the court of appeal for ontario

Headnote

Criminal law — Appeals — Unreasonable verdict — Circumstantial evidence — Accused not testifying at trial and convicted by jury — Evidence at trial establishing strong case to answer — Court of Appeal entitled to consider accused's silence in assessing reasonableness of verdicts as indicative of absence of exculpatory explanation or innocent inference — Trial judge's instructions to jury clear that accused's silence could not be used against him — Convictions upheld.

Cases Cited

Referred to: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874.

History

APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Hourigan and Miller JJ.A.), 2018 ONCA 515, 362 C.C.C. (3d) 76, 47 C.R. (7th) 175, [2018] O.J. No. 3013 (QL), 2018 CarswellOnt 8833 (WL Can.), affirming the convictions of the accused for intentionally discharging a firearm while being reckless as to the life or safety of another person and occupying a motor vehicle while knowing there was a firearm in the vehicle. Appeal dismissed.

Counsel

Brian Snell, for the appellant.

Leslie Paine, for the respondent.

Michael Dineen, for the intervener.

Reasons for Judgment

The judgment of the Court was delivered orally by

[1] Moldaver J. — We agree with the majority of the Court of Appeal that the circumstantial evidence presented against the appellant established a strong case to answer. In the words of the majority, which we accept, this was the "paradigm of a case to meet, far removed from 'no case to answer'": para. 34.

[2] That being so, it was open to the court on appeal to consider the appellant's silence in assessing and ultimately rejecting his unreasonable verdict argument: see R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 103.

[3] In so concluding, we note that the trial judge made it clear to the jury, on numerous occasions, that it could not consider the appellant's failure to testify as a makeweight for the Crown's case. In this regard, we do not endorse paras. 32 and 36 of the majority's reasons, to the extent they may be taken as suggesting otherwise.

[4] In the result, we would dismiss the appeal.

Judgment accordingly.

Solicitors

Solicitor for the appellant: Brian Snell, Toronto.

Solicitor for the respondent: Attorney General of Ontario, Toronto.

Solicitor for the intervener: Michael Dineen, Toronto.