Supreme court asked to hear appeal in Eaton Centre case
The Crown is pushing for the Supreme Court of Canada to hear the case of Christopher Husbands, the man accused of killing two men during a shooting in the Eaton Centre in 2012.
The second-degree murder convictions against Husbands were set aside in July by a unanimous threejudge panel of the Ontario Court of Appeal, which ordered a new trial after finding that the trial judge erred in the selection of the jury at Husbands’ trial.
Prosecutors are now seeking leave to appeal to Canada’s top court.
Crown attorney Alexander Alvaro argued in a memorandum filed this week that the jury selection issue is of national importance, and that it’s particularly important to seek clarity given the Supreme Court ruling known as R v. Jordan, which set strict timelines to bring criminal cases to trial.
“The present case took two months to prosecute, and a further four months passed between the verdict and sentencing,” Alvaro wrote.
“In the post-Jordan era, clarity and guidance are necessary from this honourable court to ensure that the procedure for selecting jurors accords with a proper understanding of the law, and to determine whether any error in this regard is so ‘prejudicial’ to an accused that it warrants returning such lengthy matters for a new trial.”
A lawyer with Husbands’ defence team, Stephanie DiGiuseppe, told the Star they will be responding to the Crown’s application for leave.
It will still be several months before apanel of three Supreme Court judges decides whether the court will actually hear the case.
“A significant consideration for the Supreme Court at this stage is whether the case involves a question of public importance,” said criminal defence lawyer Daniel Brown, who was not involved in the case.
“Statistics reveal that only 10 per cent of all appeal applications will be heard by the court. Given these low statistics and the narrow legal issues at play in the Husbands case, the Supreme Court is unlikely to hear this appeal.” Husbands was acquitted more than two years ago of first-degree murder but was found guilty of two counts of second-degree murder in the deaths of Nixon Nirmalendran, 22, and Ahmed Hassan, 24, during a shooting in the Eaton Centre food court that had shoppers fleeing in panic.
He was also found guilty of five counts of aggravated assault and one count of criminal negligence causing bodily harm and 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 centuries-old method used in Canadian courtrooms 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.