CITATION: R. v. George-Nurse, 2017 ONSC 4824

COURT FILE NO.: CR-16-40000676

DATE: 20170810

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Davante George-Nurse

BEFORE: S. F. Dunphy

COUNSEL: Sharna Reid, Counsel, for the Crown

Ben Moss, Counsel, for the Defence

HEARD: June 30, 2017

Sentencing ENDORSEMENT

[1] On August 13, 2015, a simple act of kindness by the accused in indulging the caprice of a young relative unwittingly triggered a chain of circumstances that has resulted in Mr. Nurse, a first time offender, facing a mandatory minimum sentence of four years.

[2] On May 31, 2017, the jury in this case found Mr. Nurse guilty of reckless discharge of a firearm (s. 244.2(1)(b) of the Criminal Code) and occupying a motor vehicle knowing of the presence of a firearm (s. 94(1) of the Criminal Code). While the minimum sentence required to be applied in the circumstances of this individual offender appears harsh on the facts of this case, my duty under the Criminal Code and the limits imposed upon my sentencing discretion are both clear.

(a) Background to the offence

[3] Late in the evening of August 12, 2015, Mr. Nurse received a call from his five year old god-sister. Their mothers were long-time best friends and it was through this connection that he had come to be known as the little girl’s god sister. The little girl was having trouble getting to sleep that summer night. With the permission of her mother, she asked him to come over for a visit by telephone. Mr. Nurse decided to indulge her whim. He came for a visit and ended up staying with the family overnight.

[4] The young girl had an older sister with whom Mr. Nurse had once been romantically involved. She in turn had recently broken off an apparently tumultuous relationship with another young man who lived in the same complex. It is clear that this young man and did not take kindly to Mr. Nurse’s visit to the family of his recent “ex”. Although he denied it, there was evidence before the jury suggesting that the individual in question slashed the tires of Mr. Nurse’s car overnight. The security video of the event is inconclusive. At all events, the ex-boyfriend did admit to putting a cinder block through the windshield later that morning even if he denied responsibility for the tire slashing.

[5] Nothing turns on whether the young man slashed the tires in addition to putting a cinder block through the windscreen of the car Mr. Nurse was driving. Both events caused severe damage to the automobile (belonging to Mr. Nurse’s mother), both events obviously were upsetting to Mr. Nurse and both events resulted in his car being disabled from being able to be driven home.

[6] As a result of the damage to his car, Mr. Nurse was stranded. He made a phone call. A few minutes later, an SUV came to the parking lot at the rear of the townhouse complex and picked him up. Mr. Nurse got in on the passenger side of the SUV. The SUV pulled out of the parking lot, rolled slowly on the roadway in front of the complex and came to a brief (four second) stop with the front third of the vehicle (including the driver’s window) just outside of the range of a security camera. Between one and three shots were fired from the driver’s window in the direction of the complex. The young man that Mr. Nurse had been told was responsible for the vandalism to his car was in the backyard of the unit in the general direction in which the shots were fired. That unit was also closest to the roadway from which the shots were fired. The car then pulled away. The driver was never identified nor was the gun recovered.

[7] The jury convicted Mr. Nurse of reckless discharge of a firearm (s. 244.2(1)(b) Criminal Code) and for knowingly remaining in a motor vehicle containing an unlicensed firearm (s. 94(1) of the Criminal Code).

[8] Based upon the evidence before the jury, the jury must be taken by me to have concluded that Mr. Nurse’s guilt arose from having counselled the driver of the SUV to commit the offence of recklessly discharging the firearm. The evidence was that the shots came from the driver of the SUV. The SUV being in view of security cameras or a witness for almost the entire trip from the back to the front of the property, there was no prospect of a switch in drivers having been effected. A single shell casing from a 9mm Luger was found on the roadway near the spot where the SUV was seen by security cameras to stop.

(b) Circumstances of the offender

[9] Mr. Nurse was 21 years of age at the time of the incident. He has no criminal record.

[10] The pre-sentence report describes a young man who had only just recently moved away from home to assert his independence. His family had moved a number of times in his youth, on at least one occasion due to incidents where gun violence had impacted upon his family.

[11] He had some difficulty with school, suffering from ADHD. He did obtain his high school diploma and was looking at career training with a view to qualifying in a skilled trade at the time of the incident.

[12] He drinks seldom and is an occasional user of marijuana only. He does not consider himself to have an addictive personality.

[13] I reviewed the support letters filed as part of the sentencing hearing. I shall not review them at length here. They speak volumes of the heartbreak and shock his friends, family and community have felt as a result of learning of these charges and their potential impact upon him.

[14] Whatever else can be said, these letters make clear the positive impact Mr. Nurse has played in the lives of many. The pre-sentence report too contains a positive assessment of his character, behaviour and attitude.

[15] I conclude from the evidence before me that Mr. Nurse’s prospects for rehabilitation must be considered to be excellent.

(c) Position of the parties

[16] The Crown submitted that the four year minimum sentence under s. 244.2(1)(b) of the Criminal Code is applicable and asked for no greater sentence. The Crown further submitted that a sentence of six months would be appropriate for the charge pursuant to s. 94(1). In light of the circumstances, the Crown did not press heavily the position that the sentences ought to be consecutive.

[17] In terms of ancillary orders, the Crown sought a DNA order pursuant to s. 487.051 of the Criminal Code and a 9-year weapons prohibition order pursuant to s. 110(1)(b) of the Criminal Code.

[18] In light of the statutory minimum sentence of four years under s. 244.2(3)(b) of the Criminal Code, the defence took no position on the sentence suggested by the Crown. The defence also took no position on the proposed six month sentence under s. 94(1) providing the sentence was to be served concurrently with the sentence under s. 244.2(1)(b) of the Criminal Code. The defence similarly took no position on the ancillary orders sought.

(d) Presentence Custody Credit

[19] The parties agree that Mr. Nurse is entitled to 7.5 days of credit for the 5 days of actual pre-sentence time spent in custody. They differed as to the credit if any that might be allowed to account for the 325 days Mr. Nurse has spent under conditions of house arrest in application of the principles in R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 37.

[20] The Crown emphasizes that “bail is not jail” and, while not opposing any credit, suggest that the figure ought to be significantly below the 81 days suggested by the defence. The Crown relied upon the recent decision of Akhtar J. in R. v. Reis, 2017 ONSC 1961 for the proposition that there is no fixed formula and that specific evidence of the nature of the hardship imposed is required. The defence for its part submitted that the impact of the house arrest conditions upon Mr. Nurse is evidenced in the pre-sentence report.

(e) Analysis and ruling

[21] I must start by recognizing without hesitation the very pressing interest society has in deterrence when it comes to crimes involving firearms. What was once a trickle of firearms offences has in recent years come to resemble a flood. The problem is a growing one and one that is particularly acute in the GTA region. Mr. Nurse’s pre-sentence report relates a number of incidents where gun violence impacted upon those near and dear to him when he was a growing up.

[22] Exemplary sentences, as harsh as they may appear in the circumstances of an individual offender, play a role both in demonstrating society’s abhorrence of the behaviour underlying the offence and in creating a very significant deterrent to a category of crime in urgent need of action. While offenders may not expect to be caught, exemplary sentences may contribute to causing them to think twice given the possibility that they may.

[23] In the present case, the firearm was discharged from a motor vehicle in the direction of a playground area in a public housing townhouse complex just after lunch time on an August afternoon. While there were no injuries, it requires little imagination to speculate as to what could have happened, to say nothing of the prospect of an errant bullet continuing on the short distance behind the complex to the Don Valley Parkway beyond. It is fortunate indeed that nothing worse happened. This incident was pregnant with the potential for severe tragedy – it was only a result of chance and good fortune that no injuries resulted.

[24] On the other hand, mandatory minimum sentences remove from the judge any capacity to account for the factors and objectives the Criminal Code would otherwise require me to examine were they to lead me towards a lower sentence in the individual circumstances of this offender. His first time offender status, his youth, his comparatively lower degree of responsibility as passenger in the vehicle from which the shots were fired by the driver and his excellent prospects at rehabilitation would all argue strongly for a degree of leniency being shown to Mr. Nurse in this case were it open to me to do so. The same can be said of the favourable descriptions of his potential in the support letters I have reviewed.

[25] I can find no basis in the general sentencing principles prescribed by the Criminal Code for considering a harsher sentence than the minimum one prescribed by Parliament and, as I have noted, the Crown did not strongly urge me to do so.

[26] The six month sentence proposed for knowingly being an occupant of a motor vehicle in which a firearm was present was not opposed by the defence and appears reasonable to me in the circumstances.

[27] In my view, the sentences for the two offences for which Mr. Nurse has been convicted must be served concurrently. The two offences were clearly part of a single incident that cannot logically be separated. As well, the totality principle strongly argues against consecutive sentences here. As noted, the Crown did not press this point.

[28] There remains the matter of credit. The 7.5 days total credit (rounded up to the nearest whole number being 8 days) for time spent in custody (5 days at 1.5 times) is not in dispute and will be allowed.

[29] The real area of dispute was in respect of the lengthy period of time spent under house arrest (325 days). Mr. Nurse was just at the point in his life where he was beginning to live on his own and support himself. He was looking to pursue a career in carpentry or another skilled trade. He was also looking at training for a career in truck driving. The charges and the bail conditions imposed upon him resulted in him moving back in with his mother and have made it difficult to impossible to pursue career options at the point in his young life when it would be most important for him to do so. Having acquired some solid work experience before serving the lengthy sentence the law requires me to impose in this case might have afforded Mr. Nurse a foundation he could fall back upon post-release. This will not happen now. I consider the request for 81 days credit to reflect the adverse impact upon Mr. Nurse in the unique circumstances of this case to be reasonable in all of the circumstances. Bail is not jail. However, Mr. Nurse will emerge from custody in a position materially worse than would have been the case had the same 325 days been spent under more lenient terms.

[30] I am allowing pre-sentence custody credit of 89 days in total as asked (81 days plus 8). In my view I have given the maximum pre-sentence credit I can reasonably allow in the circumstances of this case and I do not propose to increase the credit for the additional delay between the time of argument and the delivery of these reasons – a delay necessitated by the defence request for additional time to consider a mistrial application.

(f) Disposition

[31] Mr. Nurse please rise. It is my duty to sentence you as follows:

a. For reckless discharge of a firearm contrary to s. 244.2(1)(b) of the Criminal Code, a sentence of 4 years imprisonment is imposed less presentence credit of 89 days;

b. For knowingly occupying a motor vehicle in which there is a firearm contrary to s. 94(1) of the Criminal Code, a sentence of six months imprisonment is imposed to be served concurrently with the sentence imposed pursuant to s. 244.2(1)(b) thereof;

c. Presentence credit is calculated at 89 days broken down as follows:

i. Pre-sentence custody per R. v. Summers, [2014] 1 SCR 575, 2014 SCC 26 5 days @ 1.5 x or 7.5 days rounded up to 8 days;

ii. Credit for time spent under house arrest per R. v. Downes (2006), 2006 3957 (ON CA) of 81 days,

d. The following ancillary orders shall also issue:

i. DNA order pursuant to s. 487.051 and nine year prohibition on the possession of firearms pursuant to s. 110(1)(b) of the Criminal Code.

[32] Mr. Nurse I cannot sugar coat this. It is a stiff sentence and it will be a very difficult one for you deal with. The law demands an example be made and affords me no discretion to do otherwise. You are blessed with the support of a strong family and I have every confidence that you will not emerge from this changed for the worse. I can see that you have made a positive difference in a number of lives and I hope that you will soon be able to do so again. I wish you every success in the future sir.

S. F. Dunphy, J.

Date: August 10, 2017