Top court won’t hear appeal
Accused killer in shootings at Eaton Centre faces new trial
The man accused of killing two people at the Eaton Centre, during a shooting that had patrons fleeing the mall’s food court in 2012, will proceed to a second trial, after the Supreme Court of Canada declined Thursday to hear the Crown’s appeal in the case.
Christopher Husbands had been convicted by a jury of two counts of second-degree murder in the deaths of Nixon Nirmalendran, 22, and Ahmed Hassan, 24. But those convictions were overturned by the Ontario Court of Appeal last year, after the court found the trial judge erred during jury selection. The Court of Appeal ordered a new trial. The Crown then turned to the Supreme Court to hear its appeal and uphold Husbands’ convictions.
On Thursday, the country’s top court announced it had declined.
“Mr. Husbands is eager to have his new trial in September and is pleased by the decision of the Supreme Court,” said his lawyer, Dirk Derstine.
Husbands, whose lawyers had put forward a defence of not criminally responsible due to post-traumatic stress disorder at his first trial, was sentenced to life in prison with no chance of parole for 30 years.
The Husbands case was at least the second case that involved the same judge, now-retired Superior Court justice Eugene Ewaschuk, and a similar error in jury selection that led the Court of Appeal to order a new trial.
At issue is the method to select a jury when the Crown or defence makes a “challenge for cause,” which often means determining whether the jurors are able to judge the accused without bias.
Prior to 2008, the only way to do that was to select two names from the jury panel, who become known as the “triers.”
The triers then listen to a prospective juror being asked whether they can decide the case without bias and then approve them to sit on the jury based on the response.
Once the two triers have found a prospective juror to be impartial, and as long as the Crown and defence take no issue with that person, he or she becomes a sworn member of the jury and takes the place of one of the two triers.
The process of questioning the next potential juror is repeated using the remaining trier and juror No. 1. Once approved, the second juror takes the place of the remaining trier. There are now two sworn members of the jury and the two original triers are dismissed.
Those two jurors decide on the impar- tiality of juror No. 3.
After that person is selected, jurors No. 2 and No. 3 decide on juror No. 4, so on until 12 jurors are selected, hence the term “rotating triers.” Parliament amended the Criminal Code in 2008 to allow for “static triers” — meaning the same two people pick the entire jury — but only if the defence asks for it.
Writing for a unanimous Court of Appeal panel in July, Justice David Watt said Husbands’ lawyers made it clear they wanted rotating triers, but Ewaschuk imposed static triers.