Devante George-Nurse Appellant v. Her Majesty The Queen, 2019 SCC 12

SUPREME COURT OF CANADA Citation: R. v . George-Nurse , 2019 SCC 12, [2019] 1 S.C.R. 570 Appeal Heard: February 15, 2019 Judgment Rendered: February 15, 2019 Docket: 38217 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) R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570 Devante George-Nurse Appellant

v. Her Majesty The Queen Respondent and Criminal Lawyers’ Association Intervener 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 Criminal law — Appeals — Unreasonable verdict — Circumstantial evidence — Accused not testifying at trial andconvicted by jury — Evidence at trial establishing strong case to answer — Court of Appeal entitled to consider accused’s silence inassessing reasonableness of verdicts as indicative of absence of exculpatory explanation or innocent inference — Trial judge’sinstructions to jury clear that accused’s silence could not be used against him — Convictions upheld. Cases Cited Referred to: R. v.

Noble, (SCC), [1997] 1 S.C.R. 874. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Hourigan and Miller JJ.A.), 2018 ONCA 515, 362C.C.C. (3d) 76, 47 C.R. (7th) 175, [2018] O.J. No. 3013 (QL), 2018 CarswellOnt 8833 (WL Can.), affirming the convictions of theaccused for intentionally discharging a firearm while being reckless as to the life or safety of another person and occupying a motorvehicle while knowing there was a firearm in the vehicle. Appeal dismissed. Brian Snell, for the appellant. Leslie Paine, for the respondent. Michael Dineen, for the intervener.

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 theappellant established a strong case to answer. In the words of the majority, which we accept, this was the “paradigm of a case to meet, farremoved 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 hisunreasonable verdict argument: see R. v.

Noble, (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 theappellant’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’sreasons, to the extent they may be taken as suggesting otherwise. [4] In the result, we would dismiss the appeal. Judgment accordingly.

Solicitor for the appellant: Brian Snell, Toronto. Solicitor for the respondent: Attorney General of Ontario, Toronto. Solicitor for the intervener: Michael Dineen, Toronto.