Dirk Derstine

The Crown brought a pre-trial motion seeking to admit circumstantial evidence to challenge the accused's narrative of how he came into possession of the handgun used in the Eaton Centre shooting.

The Crown sought to introduce evidence linking a third party to a prior shooting where the same gun was used, and letters suggesting the accused knew the third party.

The court dismissed the application, finding that the suggested links were too speculative and that admitting the evidence to challenge the accused's credibility on a critical issue would be unfair and unreasonable.

Christopher Husbands was on trial for murder and aggravated assault following a shooting incident.

The defence sought verdicts of Not Criminally Responsible on account of Mental Disorder (NCRMD) due to a dissociative state.

During jury deliberations, a question arose regarding whether the accused should be found NCR if he was able to appreciate the nature and quality of some, but not all, of the shots fired.

The judge instructed the jury to consider the defence's onus to prove NCRMD for the shots that caused the deaths and injuries, emphasizing the lack of evidentiary basis to parse the shots.

The jury ultimately found Husbands guilty of two counts of manslaughter, five counts of aggravated assault, and other firearm-related counts.

The accused, charged with murder and other offences arising from a shooting at the Toronto Eaton Centre, brought a Corbett application to exclude reference to a prior sexual assault conviction and the fact he was on bail at the time of the shooting.

The Crown argued the full record was relevant to the accused's diagnosis of Antisocial Personality Disorder and his credibility.

The court granted the application, finding that the accused's extensive admitted criminal history provided sufficient information for the jury to assess credibility and malingering, and that the sexual assault conviction and bail status would be unnecessarily prejudicial.

Christopher Husbands, facing a retrial for murder and aggravated assault stemming from the Toronto Eaton Centre shooting, applied to exclude viva voce evidence or prior testimony of a 13-year-old victim and his family.

The defence argued that given the accused's admissions and the live issues at trial (specifically, a Not Criminally Responsible defence based on PTSD), the prejudicial impact of such emotional testimony would outweigh its probative value.

The Crown opposed, suggesting the evidence would balance sympathy for the accused.

The court allowed the defence's application, ruling that the evidence of the victim and his family would be presented via agreed statements of fact, read to the jury and filed as exhibits, rather than through live testimony or prior audio, as the latter would be highly prejudicial without significant probative value on the contentious issues.

The Crown applied to admit an audio-taped hearsay statement from Nisan Nirmalendran, a deceased witness, regarding the 2012 Eaton Centre shooting where the accused, Christopher Husbands, admitted firing shots.

Husbands' defence was not criminally responsible due to PTSD and dissociation.

The court dismissed the Crown's application, finding the statement lacked necessity due to other available evidence and failed to meet the threshold reliability criteria.

Key reasons for denying admissibility included the absence of an oath or affirmation, lack of cross-examination, potential tainting from news reports, and significant motives for the declarant to fabricate or downplay his actions.

Christopher Husbands, facing a retrial for murder and aggravated assault, asserted a Not Criminally Responsible (NCR) defence based on mental disorder automatism due to PTSD.

The defence applied to exclude expert references to Antisocial Personality Disorder (ASPD) and to limit references to malingering.

The court dismissed both applications, ruling that ASPD could be referenced, with limitations on propensity aspects, focusing on its manipulation, malingering, and deception components relevant to the NCR defence.

The court also allowed Crown experts to refer to malingering concerns, emphasizing its relevance to the NCR issue and providing jury instructions to distinguish it from the presumption of innocence regarding the elements of the offence.

Christopher Husbands, facing charges including second-degree murder, applied to challenge prospective jurors for cause based on potential bias related to mental illness, specifically concerning a "not criminally responsible" defence.

The defence proposed a third challenge question regarding preconceptions about mental illness, in addition to agreed-upon challenges for race and publicity.

The court considered expert testimony on public stigma against mental illness but found that the evidence did not establish a widespread bias specific to the mental disorder at issue (PTSD) or that jurors would be unable to set aside such bias despite judicial instructions.

The application for the additional challenge for cause question was dismissed.

The Court dismissed the appeal and upheld the convictions, with a majority substantially adopting Justice Nordheimer’s reasons and a dissent that would have allowed the appeal for reasons substantially aligned with Justice Pardu.

The appellant appealed his conviction for second degree murder of a drug dealer who was found dead with blunt force trauma to the head and multiple stab wounds.

The Crown's case relied on circumstantial evidence including the appellant's connection to the deceased, knowledge of his residence, financial motive, threatening text messages, cell phone evidence, and possession of the deceased's stolen belongings.

The appellant raised three grounds of appeal: exclusion of alternate suspect evidence, admission of threatening text messages, and failure to leave manslaughter as a lesser included offence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant was convicted of attempted murder and related firearm offences.

On appeal, the appellant challenged the conviction as unreasonable, arguing that no properly instructed trier of fact could conclude beyond a reasonable doubt that the appellant was the shooter.

The appellant raised two main arguments: first, that police committed procedural missteps in obtaining the complainant's identification, and second, that the trial judge erred by focusing on credibility rather than reliability of the complainant's evidence.

The Court of Appeal rejected both arguments and dismissed the appeal, finding that the trial judge properly assessed the reliability of the identification evidence and made no error in principle or palpable and overriding error of fact.

The appellant was convicted of operating a vessel over 80 mg of alcohol per 100 ml of blood causing bodily harm following a boating accident on Lake Muskoka.

She appealed on the grounds that evidence was obtained in violation of her Charter rights.

The trial judge found violations of sections 8, 9, and 10(b) of the Charter but admitted the hospital records containing blood-alcohol analysis while excluding the blood samples themselves.

The Court of Appeal (majority) upheld the convictions, finding that while Charter breaches occurred, the cumulative effect did not warrant exclusion of the hospital records under section 24(2).

Justice Pardu dissented, arguing the hospital records should be excluded due to the serious invasion of bodily integrity and dignity.

The appellant was convicted on 18 counts relating to drug trafficking and firearm possession following an undercover police operation.

He was sentenced to seven years imprisonment (three and one-half years on firearm offences and four years on drug offences, made consecutive and then reduced on a global basis).

The appellant appealed both conviction and sentence on three main grounds: alleging a breach of section 8 Charter rights regarding the search warrant, claiming the trial judge's amended reasons constituted after-the-fact justification, and asserting the verdict was unreasonable.

The appellant also sought leave to appeal sentence, arguing the consecutive sentences were inappropriate.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant was acquitted of first degree murder but convicted of contempt of court for refusing to disclose the identity of an alleged third party who he claimed was the actual murderer.

The trial judge sentenced him to three years imprisonment.

On appeal, the appellant argued the trial judge erred by sentencing him on the basis that he may have been the murderer and by failing to credit pre-trial custody.

The majority dismissed the appeal, finding the trial judge's language was contextual and did not impact the sentence.

A dissenting judge would have allowed the appeal and reduced the sentence to two years, finding the trial judge improperly considered the possibility of the appellant's guilt and failed to credit pre-trial incarceration as relevant information.

The appellant was convicted of first degree murder in the stabbing death of Kevin Pham.

On appeal, the court considered three grounds: (1) whether the trial judge erred in instructing the jury on the co-conspirators' exception to the hearsay rule for out-of-court statements; (2) whether the trial judge erred in admitting the victim's ante mortem statements; and (3) whether the trial judge erred by including multiple alternate routes to liability in the jury charge.

The Court of Appeal allowed the appeal, finding that the trial judge's instruction on the co-conspirators' exception was not supportable on the record and lacked adequate reasons.

The court ordered a new trial.

The Crown brought an application for certiorari to set aside a preliminary inquiry judge's decision discharging the respondent on a charge of first degree murder.

The respondent was present during an armed robbery and shooting at a restaurant but did not directly participate in the robbery or the killing, though he did briefly assault one of the victims.

The reviewing court found that the preliminary inquiry judge did not commit jurisdictional error in concluding there was insufficient evidence to commit the respondent for murder under either party liability or constructive murder provisions.

The application was dismissed.

During a trial for two counts of first degree murder, the Crown sought to cross-examine the accused on text messages and a video clip suggesting he possessed a firearm prior to the homicides.

The court ruled that the Crown could not suggest inferences from the text messages, as it would operate unfairly.

However, the court allowed the jury to consider the video clip showing the accused allegedly pointing a firearm, finding it admissible as evidence of access to means and that its probative value outweighed its prejudicial effect.

The accused, charged with two counts of first degree murder, applied for a directed verdict of acquittal at the close of the Crown's case.

The Crown's case relied on circumstantial evidence, including video surveillance, cell phone records, and expert evidence on the 'code of silence' to establish motive and opportunity.

The court applied the test for a directed verdict, assessing whether a reasonable jury, properly instructed, could convict based on the available evidence and reasonable inferences.

The court found that the totality of the direct and circumstantial evidence provided a sufficient basis for a jury to find the essential elements of the offences proven beyond a reasonable doubt.

The application was dismissed.

The appellant was convicted of first degree murder in the death of William Mason.

The Crown's case relied primarily on the testimony of the appellant's co-accused, Jason Lusted, who pleaded guilty to accessory after the fact and became the main Crown witness.

The Crown also led circumstantial evidence including phone records, fire marshal testimony, and evidence from Edmund Huard regarding a plot to kill Lusted.

The appellant appealed on three grounds: errors regarding phone records, withdrawal of fire marshal evidence, and admission of Huard's evidence.

The Court of Appeal allowed the appeal and ordered a new trial, finding that Huard's evidence was inadmissible as it lacked probative value and required circular reasoning.

The appellant appealed his convictions for two counts of second degree murder, five counts of aggravated assault, criminal negligence causing bodily harm, and reckless discharge of a firearm arising from a shooting at the Eaton Centre.

The sole ground of appeal concerned the jury selection procedure.

The trial judge directed that the truth of challenges for cause be determined by static triers without a proper application under s. 640(2.1) of the Criminal Code.

The appellant had expressly and repeatedly declined to make such an application and sought rotating triers instead.

The Court of Appeal found this constituted jurisdictional error, as the default rule requires rotating triers and static triers may only be ordered upon satisfaction of statutory conditions precedent, including an application by the accused.

The court allowed the appeal and ordered a new trial.

The appellant appealed his conviction for attempted robbery and his 20-month sentence.

On the conviction appeal, the appellant argued that the trial judge failed to adequately account for the frailty of Crown witness evidence and applied more rigorous scrutiny to the appellant's evidence than to Crown witnesses.

The Court of Appeal upheld the conviction, finding the trial judge properly assessed the credibility of the accomplice and victim witnesses and did not reverse the onus of proof.

On sentencing, the Court of Appeal admitted fresh evidence regarding trial counsel's suspension, the co-accused's role in adjournments, and the appellant's bail variation application.

The Court also considered the appellant's extraordinary rehabilitation efforts since sentencing.

The sentence was varied to time served.