WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2014-02-24

Court File No.: Toronto Old City Hall 12-10016835-00

Between:

Her Majesty the Queen

— AND —

Christopher Husbands

Before: Justice K. Caldwell

Heard on: September 3-6, September 16 – October 10, 22-23, November 12-14, December 20, 2013

Reasons for Judgment released on: February 24, 2014

Counsel:

Ms. Mary Humphrey and Mr. John Cisorio — counsel for the Crown

Mr. Dirk Derstine and Ms. Stephanie DiGiuseppe — counsel for the accused Mr. Christopher Husbands

Reasons for Judgment

K. Caldwell J.:

The Incident

[1] Around 6 pm on a June evening two years ago, a shooter opened fire in the Toronto Eaton Centre's North Food Court. The area was packed with diners as it was a Saturday night, the dinner hour, and the Food Court had recently reopened with much fanfare after extensive renovations. The shooting spree was over within minutes but by that point one man was dead, another was dying, and five others had been hit by bullets. Of those five who were injured, it was the damage to then 13 year old Connor Stevenson that most shocked Toronto residents – Connor was in town for a show and to do some shopping with his mother and his older sister. He was hit by a bullet that went through his forehead and into his brain. Miraculously, Connor not only survived but also made a virtually full recovery, undoubtedly largely due to the close proximity of the neurosurgical team at Sick Children's Hospital.

[2] A further and very poignant type of damage also became clear over the course of this preliminary hearing - the invisible yet profound and ongoing emotional trauma suffered not only by many of the witnesses but undoubtedly by the vast numbers of other individuals who were in the Food Court that night.

[3] Mr. Husbands ultimately was charged with nine counts, including two counts of first degree murder and five counts of attempt murder.

The Attempt Murder Charges

[4] In 1984, the Supreme Court of Canada clarified that a conviction for attempt murder requires proof of a specific intent to kill. Further, the doctrine of transferred intent does not apply to attempt murder. In other words, if X shoots in an attempt to kill Y but Z is hit with the bullet instead, then X cannot be convicted of attempting to kill Z. If Z dies, it is a different story – X then can be convicted of the murder of Z.

[5] It is crystal clear from the evidence that there was no specific intent to kill the five individuals who were hit yet survived. The Crown therefore has quite appropriately conceded that committal should follow on the lesser charge of aggravated assault with respect to each of these people. I am in full agreement with that decision. This fact in no way undermines the gravity of what occurred to these individuals.

[6] I want to comment briefly, however, on the testimony and behaviour of Connor Stevenson's family before leaving this area. Both Connor's mother, Ms. Jo-Anne Finney, and his sister, Taylor Stevenson, testified. I have heard literally thousands of witnesses testify during my years in the criminal justice system. I have rarely heard witnesses convey evidence with the degree of clarity, composure and grace exhibited by both Taylor and her mother. These qualities are undoubtedly what led them to respond as swiftly and effectively as they did once they realized Connor had been shot – having the presence of mind, for example, to ask him to answer math problems in order to try to keep him alert as he began to lose consciousness. Undoubtedly these actions contributed to Connor's survival.

The Issue

[7] Identity is conceded for the purposes of the preliminary inquiry. It is also conceded for the purposes of the prelim that Mr. Nixon Nirmalendran and Mr. Ahmed Hassan were murdered. The only issue is whether there is evidence that either or both of these murders were planned and deliberate, warranting committal on first degree as opposed to second degree murder.

Finding

[8] I find that there is sufficient evidence to order Mr. Husbands to stand trial on both counts of first degree murder for the reasons that follow.

Test for Committal

[9] The preliminary inquiry test is whether there is any evidence upon which a reasonable jury properly instructed could convict. As a rule, the preliminary inquiry judge does not weigh the evidence to determine if it is credible or true. There is a slight modification of this principle in circumstantial cases. In a circumstantial case there will be "an inferential gap between the evidence and the matter to be established". In such instances the judge must engage in a limited weighing of the evidence to determine if it is reasonably capable of supporting the inferences that the Crown will ask the jury to draw.

[10] There is no direct evidence of planning and deliberation in this case. The Crown argues that the evidence presented would allow a reasonable jury to infer that Mr. Husbands planned and deliberated upon these murders prior to committing them.

[11] It is my task as the preliminary inquiry judge to engage in a limited weighing of the evidence in order to determine if the evidence can reasonably support such inferences.

Law of Inferences

[12] It can be difficult to determine, however, if the evidence is capable of such reasonable support as it is often difficult to determine the difference between speculation and a logical conclusion.

[13] A properly drawn inference does not amount to speculation. Speculation is akin to guesswork and proof beyond a reasonable doubt cannot flow from hunches, speculation or guesses.

[14] Justice Ducharme has helpfully outlined the two step process required to draw a proper inference. First, the jury must determine if the primary facts underlying the inference have been proven. Secondly, assuming that they have, then the jury must determine if it is convinced beyond a reasonable doubt that such evidence establishes the inference requested by the Crown.

[15] At the preliminary hearing stage, the judge must determine first whether there is evidence of the primary facts. If there is such evidence, then the judge must determine if that evidence is capable of reasonably supporting the requested inferences.

[16] It can be very difficult to make the assessment required by the second step in this process. Justice Ducharme noted that it is virtually impossible to precisely define the line between reasonable inferences and impermissible speculation. He found the following language from an American case helpful on this point:

If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.

[17] Justice Moldaver has noted that reasonable inferences needn't be those that are most obvious or easily drawn. Instead, he noted that "all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn". On the other hand, Justice Fairgrieve of this Court has noted, "[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence".

Law of Planning and Deliberation

[18] The classic definition of planning and deliberation is found in then High Court Justice Gale's charge to the jury in R v Widdifield. He spoke of a "calculated scheme or design….carefully thought out, and the nature and consequences of which have been considered and weighed". The plan may be very simple. He explained "deliberate" as "considered", "not impulsive", "slow in deciding" and "cautious".

[19] Such a definition conjures up images of Rodin's Thinker, carefully pondering and weighing the competing concerns. It is clear upon examination of the cases which have applied this definition that the appellate and reviewing courts do not require an analysis that unfolds as slowly or with the clear degree of precision that such an image would suggest. The cases of R v Weese, R v Hay and R v Plewes are helpful examples of the application of this definition to actual evidentiary scenarios.

[20] In Weese, the accused got into an argument with the deceased outside a bar. As the victim headed back to the tavern, Mr. Weese walked a short distance to a man who gave him a handgun. He then walked to the bar and shot the victim along with others. Hay also involved a bar fight and was a scenario was akin to that in Weese.

[21] Mr. Plewes killed his girlfriend when she tried to break off their relationship. The issue was the subsequent death of her two year old son. After killing the mother, Mr. Plewes concluded that her son shouldn't grow up without a mother so he headed to the son's bedroom and killed him too.

[22] It is clear from these cases that the time taken to weigh the consequences was extremely short and did not follow a systemic format. The plans in each were rudimentary. The deliberation appears to be inferred.

[23] Further, there is no requirement that the murder be the product of a reasonable or rational plan. It simply must be considered and not the result of a sudden impulse.

[24] Waiting for an opportunity to commit a murder can also be evidence that contributes to an inference of deliberation.

Arguments Which Do Not Support the First Degree Murder Inference

[25] As I will explain more fully at a later point, the inference of first degree murder largely can be drawn from two factors – motive, and the unique nature of these killings. A few months prior to the murders, Mr. Husbands was repeatedly stabbed. I will deal with the details of that stabbing at a later point. He came to believe, however, that Mr. Nirmalendran was one of the stabbers. This brief context is necessary in order to understand the Crown's submissions for consideration of the following factors, and my reasons for rejecting these submissions:

(i) Mr. Husbands Deliberately Refused to Identify His Attackers in His Statements to the Police in Order to Exact Revenge

[26] This argument must be assessed using the two step process outlined above as it also calls for inferences to be drawn. It is only if there is evidence of the primary facts asserted by the Crown – that the refusal to identify his attackers was deliberate on Mr. Husbands' part and that this deliberate refusal was in done in turn in order to exact revenge – that such facts can be utilized in assessing whether Mr. Husbands planned and deliberated upon these murders.

[27] First, I must assess whether there is evidence that the non-identification of the stabbers was deliberate. If there is no such evidence, then obviously the second branch of the argument, that it was done to exact revenge, must fail. Mr. Husbands repeatedly told the police that he did not know who stabbed him. There is other evidence that Mr. Husbands knew who Mr. Nirmalendran was prior to the stabbing though it is less clear whether he knew at this point of Mr. Hassan's identity. He did give a somewhat generic description of his attackers. He also came to believe that Mr. Nirmalendran was one of the stabbers though it is unclear whether he was of this belief on the night of the stabbing or if it was information that he learned later.

[28] I find that there is evidence from which a jury could infer that Mr. Husbands knew at the time he spoke to the police about his stabbing that one of his attackers was Mr. Nirmalendran. The fact that Mr. Nirmalendran was a person known to him, from Regent Park, and that at some point he learned that Mr. Nirmalendran was involved in the stabbing are all pieces of evidence from which a jury could infer that at minimum he knew on the night of the stabbing that Mr. Nirmalendran was involved. I also find that there is evidence from which the jury could infer that Mr. Husbands thought Mr. Hassan was also involved. I will address the specifics of that evidence at a later point.

[29] I turn then to the second branch of the argument – that Mr. Husbands deliberately held back this information so that he could exact his own revenge. I find that such a conclusion would be speculative and not grounded in the evidence. There are a vast number of scenarios which could be constructed to explain why Mr. Husbands may not have told the police the identities of the stabbers. As noted above by Justice Fairgrieve, "[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence".

[30] I find that it would require speculation on the part of the jury to conclude that the fact that Mr. Husbands shot both men four months later meant that at the time of the stabbing he withheld information regarding their identities in order to essentially reserve their fate for himself and allow him the opportunity to do the shooting when the opportunity presented itself months later.

(ii) The Gun Carried by Mr. Husbands was Fully Racked Prior to the Shooting

[31] As I understood the evidence of Mr. Benjamin Sampson, the gun expert, one can carry a gun fully racked, meaning with a cartridge in the chamber ready to fire upon pulling the trigger, or one can rack the gun just prior to firing by moving the slide back so that the cartridge enters the chamber. I cannot determine from the evidence presented that there is any basis for the claim that the gun is already racked when Mr. Husbands removes it from the bag he is carrying. Mr. Husbands may have racked it in advance or that may have been done just prior to the shootings. It can be concluded from watching Mr. Husbands on the video footage that he is very comfortable using a gun. Mr. Sampson testified that a gun can be racked by exerting pressure against a jean pant, for eg., though that is difficult to do. On the basis of the footage I have seen, it would simply require guesswork – thus speculation – to determine when it was racked.

(iii) Mr. Husbands' Post Offence Conduct is Consistent with Planning and Deliberation

[32] I find that Mr. Husbands' post offence conduct does not assist in allowing for an inference of planning and deliberation. A jury could conclude upon watching the surveillance video from Mr. Husbands' sister's apartment that Mr. Husbands and his male companion were attempting to hide their faces when they entered the building. Further, despite search warrants being executed on numerous residences connected to Mr. Husbands, the gun, his clothing from that evening and his cell phone were never located. It could be inferred from this evidence that Mr. Husbands took steps to dispose of these items. His post offence conduct is simply consistent with someone wishing to avoid detection after a murder, whether planned or not. Such evidence may assist with the issue of identity if that is in issue at trial but I do not find that it can assist a jury with the question of planning and deliberation.

(iv) Mr. Husbands Obtained a Gun in the Days Just Prior to the Murders

[33] The gun used in the Eaton Centre shooting was never found. The cartridge casings, however, matched the cartridge casings of a gun used in the "Blevins Place" shooting which occurred five days earlier. Another individual, Mr. Marcus Gibson, has been arrested in relation to that matter.

[34] The Crown argues that the jury could infer from this evidence that Mr. Husbands obtained the gun in the few days that elapsed between the Blevins Place shooting and the Eaton Centre shooting. Various cases have found that recent procurement of a murder weapon can be a piece of evidence that adds to the foundation underpinning an inference of planning and deliberation.

[35] I find that this argument is speculative. There are various narratives that can be constructed to explain how Mr. Husbands came into possession of the gun. He could have obtained it from the Blevins Place shooter, he could have lent it to that individual prior to that shooting, or I suspect there are a myriad of other means by which an illegal gun moves between individuals. Once again, the fact that a narrative can be constructed does not mean that a reasonable jury could properly reach such a conclusion and I find in this instance that it would be speculative to reach such a conclusion on the basis of the evidence presented.

Relevant Evidence on the Preliminary Inquiry

[36] As I have already outlined, I find that the two primary elements of motive and the shooting itself allow for a reasonable inference of planning and deliberation. I will examine each in turn.

(i) Motive

[37] Mr. Husbands' stabbing was chilling. Mr. Husbands, who turns twenty-five years old today, had allegedly been involved in a sexual relationship with Ms. Anne-Marie Campbell for some time. Ms. Campbell has six children, some of whom are close in age to Mr. Husbands, particularly Mr. Deandre Campbell.

[38] A few days after his twenty-third birthday, he went to what he thought was Ms. Campbell's apartment on Gerrard Street East. He took a bottle of wine with him; the purpose of the visit was to receive his birthday gift from Ms. Campbell. The apartment was empty as she had moved a week prior. It is unclear whether she had told him of the move and he had forgotten or whether she had intentionally or unintentionally not told him of it. Mr. Husbands wondered after the fact if Ms. Campbell's sons and possibly Ms. Campbell herself had something to do with his stabbing.

[39] Once he entered, he was robbed and stabbed twenty-five times by a number of assailants. He managed to stagger onto Gerrard Street before he collapsed on the street near the curb. A passing motorist stopped his car and called police. When the officers arrived, they found Mr. Husbands lying in the street, bleeding profusely from stab wounds to his head and face. There was duct tape on his wrist. The photos of the blood all over the floors within the deserted apartment are very disturbing. It must have been a terrifying incident for him.

[40] At some point, Mr. Husbands came to believe that Mr. Nirmalendran participated in the stabbing. This may have been because he saw him at the time, or because he heard this information after the fact - what forms the foundation of his belief is a matter of speculation. There is evidence, however, that he was of this belief at the time of the Eaton Centre shooting, and that is what is important for the purposes of the preliminary hearing. Prior to the shooting, he told Ms. Charles that Mr. Nirmalendran stabbed him. He also admitted to Ms. Campbell that he had committed the shooting and that he killed the guys who had stabbed him. She was firm in her evidence that he spoke in the plural.

[41] Mr. Husbands' ex-co-worker, Ms. Ashley Stanger, said that Mr. Husbands told her he felt our gun laws should be loosened so that people could protect themselves. He also told her that he wanted his stabbers to feel the same pain that he had felt.

(ii) Nature of the Shooting

[42] I have heard from numerous witnesses who were present in the Food Court that evening. Their evidence was quite consistent. They all heard repeated "pops" at the outset – some thought it was firecrackers, others thought a balloon popped, a plate dropped or there was a gas explosion. They then realized that it was gunshots. At that point, husbands attempted to shield wives, parents attempted to shield children, people ducked down beneath chairs and tables. Many of the witnesses described a pause, after which they heard further shots ring out. During the second set of shots, a couple of witnesses saw Mr. Husbands shooting at Mr. Nirmalendran as Mr. Nirmalendran lay on the ground as a result of being hit by the first set of shots. Mr. Husbands' very calm and deliberate demeanour was also striking.

[43] Mr. Elvis Fraser made eye contact with Mr. Nirmalendran right before the shooting. Mr. Fraser's attention had been drawn to a group of young men coming down the escalator as he had noticed one of them, Mr. Nirmalendran, leaning over the escalator to look at something or someone. Mr. Fraser then realized that Mr. Nirmalendran had been checking out a woman standing to the side of the escalator's base. After the group came off the escalator and began walking through the Food Court, Mr. Nirmalendran and Mr. Fraser exchanged appreciative glances about the woman. The men in the group were laughing and smiling.

[44] Mr. Fraser turned towards his daughter, heard someone say "hey!", and then the shots immediately rang out. The men looked confused, and they tried to cover themselves. He saw the shooter with his hands outstretched, holding the gun, firing at the men.

[45] Immediately after the shooting, the police seized footage from the various food outlets that faced the scene. They spliced it together in a timeline that tracks Mr. Husbands' movements. Mr. Husbands can be seen standing in a corner near the Sushi Q restaurant, near the base of but set back from the escalator and the pathway leading from the escalator past the food establishments. The group of men can be seen walking from the escalator and then along the pathway, passing Mr. Husbands' line of vision. Once they have passed, Mr. Husbands takes very long strides towards the men and then pulls an object which looks like a gun from the bag he is carrying. He passes very briefly out of video range as he crosses the area from one eating establishment to the next. At the next establishment, he can be seen holding the gun with arms stretched out in front of him. He appears to be firing at the group, and the men can be seen running in different directions. He fires directly at Mr. Hassan and then at Mr. Nirmalendran. Finally, he turns and runs from the scene toward the escalators that the group had just come down.

[46] Dr. Michael Pollanen, the pathologist, testified that both men were hit by a number of bullets, and both were hit in the torso area. Mr. Nirmalendran also suffered a gunshot wound to his neck.

Available Inferences

(i) Mr. Nirmalendran

[47] In this case, there is evidence that Mr. Husbands thought Mr. Nirmalendran was one of the people who stabbed him. This evidence in turn would allow a reasonable jury to conclude that Mr. Husbands had a motive to seek revenge and harm Mr. Nirmalendran.

[48] I then turn to the shooting. The evidence of the witnesses, combined with the video evidence, would allow a reasonable jury to conclude that this was a very deliberate, cold blooded act. He was seen firing directly at Mr. Nirmalendran, and then firing directly into him while he lay on the ground. Mr. Justice Watt has pointed out that the nature of a killing, depending upon the circumstances, can allow for a reasonable inference that there was a previous plan.

[49] The combination of motive and the nature of the shooting would allow a reasonable jury to conclude that Mr. Husbands planned and deliberated upon Mr. Nirmalendran's murder and executed that plan when the opportunity to do so presented itself.

(ii) Mr. Hassan

[50] The inference that Mr. Husbands planned and deliberated upon Mr. Hassan's murder is not quite as clear. The fact that an inference may not be easily drawn does not mean, however, that it is unavailable.

[51] Mr. Husbands did tell the police that one of his stabbers spoke Somali and was in his early twenties. This admittedly broad description does fit Mr. Hassan. Furthermore, Mr. Husbands spoke in the plural when he told Ms. Campbell that he killed "the guys" that stabbed him. As only two people died in the shooting, this statement allows for the reasonable inference that Mr. Husbands believed Mr. Hassan to be one of the people involved in his stabbing. Finally, on the video, as the men are running, Mr. Husbands can be seen firing directly at Mr. Hassan and then turning his gun upon Mr. Nirmalendran. These pieces of evidence would allow a reasonable jury to conclude that Mr. Husbands had both the motive to kill Mr. Hassan and that he planned and deliberated upon that killing prior to the shooting.

(iii) Additional Evidence

[52] The fact that Mr. Husbands was carrying a loaded gun while walking around the Eaton Centre and the fact that he shot both victims in the torso, and Mr. Nirmalendran in the neck, both areas highly likely to result in fatal injuries, are further pieces of evidence which the jury could consider in determining whether to draw the inference that these murders were planned and deliberate.

Other Available Inferences

[53] Mention was made of the possibility of self-defense. Alternatively, perhaps these shootings were the result of an impulsive act on Mr. Husbands' part. Frankly, there is no direct evidence which would lead to the conclusion that Mr. Husbands was defending himself – such a conclusion on the basis of the evidence led on this preliminary hearing would be highly speculative. No other weapons were found, Mr. Hubands is seen striding toward the group, and the evidence of the patrons who saw the shooting suggested a group of men who were totally taken by surprise. As to an impulsive act, the only evidence on the preliminary that would allow for this possibility is that it seems clear that Mr. Husbands would have had no way of knowing that the men would be at the Eaton Centre that afternoon. Further, the extraordinarily reckless nature of this shooting could also contribute to such an inference.

[54] In any event, however, it is clear that my job as the preliminary hearing judge is not to choose between competing inferences but simply determine if there is evidence which would allow a reasonable jury to draw the inferences requested by the Crown. I find that such evidence is present in this case. The fact that other inferences may be available, or may become available once all of the evidence is adduced at trial, is an issue that must be left for trial and the ultimate determination of a jury.

[55] Finally, I wish to thank Ms. Humphrey, Mr. Cisorio, Mr. Derstine and Ms. DiGuiseppe for their combined excellent conduct of this preliminary inquiry. All four counsel were exceptional. It can be a difficult tightrope to walk, balancing the needs for a focussed inquiry and collegial relationship between counsel with their respective obligations to present both a vigorous prosecution and a vigorous defense. All walked that tightrope with great skill. Furthermore, the overall level of preparation and the very high calibre of the final written submissions were exemplary.

Released: February 24, 2014

Signed: "Justice K. Caldwell"