Jamaican immigrant who fought deportation now faces murder charge

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A young Jamaican immigrant who successfully fought off a deportation order during a decade-long string of crimes is now facing his most serious charge yet: second-degree murder.

David Pusey, 29, is accused of shooting 24-year-old Andrew Mackey, who had been rushed to hospital at 6:45 a.m. on Aug. 5, 2023, following an argument at a Sudbury, Ont., social gathering.

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Pusey, who has permanent resident status in Canada, once worked as a welder but has long been in trouble with the law. He arrived from Jamaica in 2011. His mother is a librarian in Jamaica. His father works in construction in Canada.

At the time of the 2023 shooting, he had been released pending trial on a gun charge. Details of his various crimes came to a light in a recent Ontario Court of Justice decision in the gun case. His lawyer had argued unsuccessfully for a six-month sentence for firearm possession to avoid the threat of deportation a second time.

Pusey argued that anti-Black racism he faced since coming to Canada should be a mitigating factor. The judge agreed it should be, but still sentenced him to four years in prison for possessing a loaded rifle.

“No sentence short of a penitentiary sentence is available, despite the presence of some mitigation and a stark collateral consequence on the immigration front,” Justice Amit Anil Ghosh said in a Jan. 2 decision.

“Mr. Pusey is again rendered inadmissible to Canada for ‘serious criminality’ and will have no right of appeal, given I must impose a custodial sentence of at least six months. He already had an existing removal order that had been stayed upon review, all stemming from his previous robbery conviction and sentence.”

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Police had searched Busey’s home in Sudbury on April 25, 2020, acting on information gleaned from a wiretap that revealed that Pusey “had been urgently trying to obtain a firearm.” They found a loaded .22 rifle concealed in a bag of yard waste in the backyard, said the judge.

Information police obtained through the wiretap indicated that Pusey “told the ostensible gun trafficker that he planned to ‘use it,’ supporting the only reasonable inference that he was informing the seller that he either intended to brandish or discharge it,” said the judge.

The Crown argued Pusey should get five years in prison for the crime.

“The defence submits I should consider (without noting) his presentence custody for an unrelated murder charge to impose a sentence of less than six months, to navigate an immigration concern,” Ghosh said.

“He risks being deported with no right of appeal if he receives a sentence of over six months.”

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Ghosh noted Pusey was sentenced to 134 days with probation for robbery in 2015. In 2017, he was fined $300 for possession of property obtained by crime.

Pusey only spent a week in pre-sentence custody on the gun charge before being released with conditions, said the judge. “However, he was arrested later for an unrelated murder charge and has remained in custody since.”

Pusey “was already once ordered deported due to the robbery sentence, but he successfully appealed and was granted a stay of the removal order,” Ghosh said. “If he receives a sentence here of six months or more, he will likely be deported without any right of appeal.”

The judge found that the law did not permit him “to consider the post-offence presentence custody accumulated for an unrelated murder charge. Aside from the legal prohibition to its use, it is additionally impermissible to use it to navigate the immigration issue. This admittedly serious collateral consequence cannot overwhelm the analysis for a fit and proportionate sentence, proposed by the defence to be years below the proper range. To do so would thwart the intention of Parliament in constructing the inadmissibility regime in the Immigration and Refugee Protection Act.”

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As a mitigating factor, the judge considered that Pusey “may have experienced anti-Black racism and that this may have informed his involvement in crime.”

Pusey’s “arrival and maladjustment from Jamaica informed his limited academic and work trajectory,” Ghosh said. “He mentioned he has experienced discrimination during his time in Canada. I also accept that his neighbourhood dealt with gun violence, and that being Black, marginalized, and of limited means informed his engagement with the criminal justice system.”

In the Mackey case, Pusey is charged with second-degree murder, unauthorized possession of a firearm, possession of a weapon dangerous to the public peace, pointing a firearm, careless use of a firearm, unauthorized possession of a firearm, discharging a firearm with intent, breach of a release order, and breaching a weapons prohibition order.

(Pusey was also wanted on an outstanding warrant for obstructing police and breaching a release order concerning an incident in 2022.)

His four-day preliminary hearing wrapped up last month. Pusey is scheduled to learn Jan. 15 whether the murder case against him will go to trial.

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