Court File and Parties

Court File No.: CR-17-10000604-0000 Date: 2019-03-11 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Christopher Husbands, Applicant

Counsel: M. Humphrey and J. Cisorio, for the Crown D. Derstine and S. DiGiuseppe, for the Applicant

Heard: October 12 and 17, 2018

Ruling on an Application to Challenge Prospective Jurors Related to a Not Criminally Responsible Defence

B. P. O’Marra, J.

Overview

[1] Christopher Husbands stood charged with two counts of second degree murder, five counts of aggravated assault and two further counts of criminal negligence causing bodily harm and discharged a firearm in a public place. All of the deaths and injuries were caused when he fired 14 shots from a handgun in the crowded food court of the Toronto Eaton Centre on June 2, 2012. The defence declared from the outset that Christopher Husbands admits he fired all of the shots. The defence’s position was that Christopher Husbands should be found not criminally responsible on all counts. The accused would testify and the defence would call forensic experts related to a mental disorder at the time of the shooting. The Crown would then call forensic experts in reply.

[2] The parties agreed that each prospective juror should be challenged related to race and publicity. The contentious issue on this application was a third proposed challenge for cause question, as follows:

In deciding whether or not the prosecution has proven the charges against a person accused of a crime, a juror must judge the evidence presented at trial without bias, prejudice, or partiality.

In Canada many people hold preconceptions about mental illness. Would you be able to set aside any preconceptions you hold, and decide this case based only on the evidence you hear and his Honour’s instructions on the law?

[3] The evidence and submissions on this application were completed on October 12, 2018. On October 17, 2018, I dismissed the application with reasons to follow. The trial has now been completed. These are my reasons.

Evidence on the Application

[4] Doctor Heather Stuart testified for the applicant. Since 2007, she has served as a professor in the Department of Psychiatry at Queen’s University in Kingston. The Crown did not contest her qualifications to testify as an expert on the following subject: stigma and attitudes towards persons suffering from mental illness.

[5] In examination-in-chief, Doctor Stuart focused on attitudes and discriminatory behaviour that mark every person with mental illness with the same brush. She referred to this as “public stigma.” Negative stereotypes and negative media depictions of mental illness can lead to discriminatory behavior (i.e. not hiring or promoting people with mental illness). She could not say what percentage of people with the attitudinal aspect act out against people with mental illness. One of the types of discriminatory beliefs is that people with mental illness are more likely to be dangerous than the average person. Prejudice is a deeply held belief and is not responsive to facts. Doctor Stuart felt that a conservative estimate of the percentage of people who have such prejudice would be 10%.

[6] In cross-examination, Doctor Stuart indicated that she has not previously testified as an expert in this area. She had testified in another case related to suicide. She agreed that her work is best characterized as mental health stigma from a public health perspective. She agreed she has not done or reviewed any research on how mental health stigma impacts jurors making decisions. She has done research related to how this stigma operates in police forces. She agreed that negative attitudes may not necessarily result in discriminatory behavior.

[7] Doctor Stuart agreed that attitudes toward mental illness depend on the specific diagnoses. Some mental health diagnoses may elicit sympathetic attitudes. However, she stated that a social distance is maintained with all mental illnesses. This refers to the view that people with a mental illness are different from others. She has not done any work related to post traumatic stress disorder (PTSD). She agrees that the public tends to associate that with combat veterans, first responders and victims of violence. There may be sympathy for those with PTSD, but there will still be strong social distance because it is associated with random violence. However, she added that this was speculation on her part.

[8] Doctor Stuart agreed that there is insufficient research on the topic of stigma to tell how attitudes may formulate to behavior.

Statutory and Charter Provisions

Criminal Code, R.S.C 1985, c. C-46 Challenge for Cause

638 (1) A prosecutor or an accused is entitled to any number of challenges on the ground that (b) a juror is not indifferent between the Queen and the accused;

Canadian Charter of Rights and Freedoms

11. Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Judicial Framework

[9] In R v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, the Supreme Court of Canada considered the basis for a challenge for cause as follows:

• A realistic potential for partiality must be shown to justify a challenge for cause (at para. 9).
• If the judge is satisfied that a realistic potential for juror partiality exists, the judge may permit the requested challenge for cause (at para. 25).
• The Canadian system of jury selection starts from the presumption that jurors are capable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties. This presumption is displaced only where potential bias is either clear and obvious (addressed by judicial pre-screening), or where the accused or prosecution shows reason to suspect that members of the jury array may possess biases that cannot be set aside (addressed by the challenge for cause process) (at para. 26).
• The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should not be confused with a perfect trial, or the most advantageous trial possible from the accused’s perspective (at para. 28).
• If there is a reason to believe that the jury pool may be so tainted by incorrigible prejudices that the trial may not be fair, then a challenge for cause must be allowed (at para. 29).
• There must be a realistic potential that the jury pool may contain people who are not impartial, in the sense that even upon proper instructions by the judge, they may not be able to set aside their prejudice and decide the case fairly (at para. 31).
• Establishing a realistic potential for juror partiality requires satisfying the court on two matters: (1) That a widespread bias exists in the community; and (2) That some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision (at para. 32).
• These two components reflect the attitudinal and behavioural components of partiality. The first is concerned with the existence of a material bias. The second is concerned with the potential effect of the bias on the trial process. These are guidelines for determining whether, on the record before the court, a realistic possibility exists that some jurors may decide the case based on preconceived attitudes or beliefs, rather than on the evidence before them (at paras. 32 and 33, citations omitted).
• The test for partiality involves two key concepts, “bias” and “widespread”. “Bias”, in the context of challenges for cause, refers to an attitude that could lead jurors to discharge their function in the case at hand in a prejudicial and unfair manner. Bias is not determined at large, but in the context of the specific case. “Widespread” refers to the prevalence or incidence of the bias in question. Generally speaking, the alleged bias must be established as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of the representative jury pool (although, in exceptional circumstances, a less prevalent bias may suffice, provided it raises a realistic potential of juror partiality) (at paras. 34, 35, 39, citations omitted).
• The decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. Where a realistic potential for partiality exists, the right to challenge must flow. If in doubt, the judge should err on the side of permitting challenges (at para. 45).

[10] In R v. Bennight, 2010 BCSC 675, the accused was to be tried on a charge of second degree murder. He had previously suffered a serious head injury that left him with brain damage. He had been found incapable of managing his financial and legal affairs due to mental infirmity caused by the head injury. He did not intend to advance a not criminally responsible defence at trial. He proposed to challenge prospective jurors for cause on the basis that there existed a realistic potential that jurors may be partial “because of pervasive views in the community that persons with mental illness … are more likely to be violent or to commit crimes” (at para. 1).

[11] In support of the application, the defence filed a report prepared by an expert witness who was an associate professor of psychology. She did not testify and the Crown did not ask to cross-examine her. The report included the opinion that there is prejudice (seen as dangerousness) and discrimination by a substantial minority of the public in Canada against persons whose mental illness includes certain symptoms.

[12] The trial judge dismissed the application. He indicated it was not clear that the issue of mental illness would arise. However, he agreed that some jurors might form the impression that the accused suffered from a mental illness based on his demeanor in court and the content of some of his post-arrest statements to police. The judge referred to the Supreme Court of Canada’s decision in Find and indicated that even if he accepted that the defence had sufficiently established the attitudinal component of partiality, he was unable to accept that the behavioural component had been established. There was nothing in the evidence that would make it reasonable to infer that the identified bias would be one which, by its very nature, would prove difficult for jurors to overcome. The accused was convicted. His appeal included the challenge for cause issue.

[13] On appeal, 2012 BCCA 190, at para. 49, the court did not suggest that a challenge for cause will never be warranted where a mentally ill accused is on trial. However, the court agreed with the trial judge that the defence evidence fell far short of establishing the behavioural component of the test even if the attitudinal component in the form of widespread community bias against people with perceived mental illness had been established. That ground of appeal was dismissed. Leave to the Supreme Court of Canada was not granted, [2012] S.C.C.A. No. 408.

Analysis

[14] There may well be cases where a challenge for cause will be warranted where a mental illness is an issue at trial. However, it will depend on the particular issues in play, the respective positions of counsel and their experts. In the case before me, the Crown experts agreed that Christopher Husbands had PTSD at the relevant time and that it was triggered by his being a victim of an attack months before the day of the shooting. The degree of severity of the PTSD at the relevant time, and whether Christopher Husbands experienced a dissociative episode related to the PTSD, were the important issues for the jury to decide.

[15] Doctor Stuart’s testimony did not deal with the specific mental disorder that the defence and Crown experts agreed existed on the day in question. She provided a broad image of bias and prejudice against persons with any mental disorder. The defence’s position based on her evidence would effectively call for a challenge for cause in any case where a mental disorder is a factor or where a not criminally responsible defence is presented. I am not satisfied that the attitudinal aspect of partiality has been established related to the specific mental disorder issues to be presented in this case.

[16] However, even if that aspect had been established, I am not satisfied that jurors would be unable to set aside any bias or prejudice after receipt of my instructions in the course of the trial and before they deliberate. Importantly, Doctor Stuart agreed that there was insufficient evidence on the topic of stigma to tell how attitudes may formulate to behavior.

[17] In the result, the application is dismissed.

B. P. O’Marra, J. Released: March 11, 2019