Court File and Parties

COURT FILE NO.: CR-17-10000604-0000 DATE: 20190313 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER HUSBANDS Applicant

COUNSEL: M. Humphrey and J. Cisorio, for the Respondent D. Derstine and S. DiGiuseppe, for the Applicant

HEARD: October 12 and 17, 2018

RULINGS RELATED TO A NOT CRIMINALLY RESPONSIBLE DEFENCE

B. P. O’MARRA, J.

[1] Christopher Husbands faced a nine-count indictment on a retrial alleging the following:

• Two counts of second degree murder;
• Five counts of aggravated assault;
• Criminal negligence by discharging a firearm in a public place; and
• Intentionally discharging a firearm while reckless as to the life or safety of another person.

[2] All of the deaths and injuries were caused by shots fired by Christopher Husbands in the crowded food court of the Toronto Eaton Centre on June 2, 2012. The defence declared at the outset that Christopher Husbands would assert a defence of not criminally responsible (NCR) based on mental disorder automatism.

[3] The defence’s position was that Christopher Husbands suffered from Post-Traumatic Stress Disorder (PTSD) at the time of the shooting and dissociated [1]. On that basis, he asserted that his actions were involuntary and unintentional.

[4] Christopher Husbands was assessed by forensic psychologists and psychiatrists retained by both the Crown and defence. The experts agreed that Christopher Husbands suffered from PTSD, but they disagreed on whether he dissociated when the shots were fired.

[5] Christopher Husbands was also diagnosed with Antisocial Personality Disorder (ASPD) and Substance Abuse Disorder. The evidence from the defence experts would include the opinions that Christopher Husbands was not malingering his reported symptoms, including that he dissociated at the critical time. The evidence from the Crown experts would include concerns related to malingering.

THE APPLICATIONS

[6] The defence applied for an order that the experts not refer to the ASPD diagnosis in their evidence. In a later application, the defence also sought an order limiting the scope of reference to concerns about malingering from the Crown experts.

[7] On October 19, 2018, I dismissed the application to exclude reference to the ASPD diagnosis with reasons to follow. As part of that order, I set out certain limitations related to some aspects of ASPD.

[8] On January 15, 2019, I dismissed the application to limit the scope of reference to malingering concerns by the experts to be called by the Crown with reasons to follow.

[9] The trial has now been completed. I will now set out the reasons for these rulings.

Reference to Antisocial Personality Disorder

[10] Dr. Julian Gojer and Dr. Peter Collins were the lead forensic psychiatrists to be called by the defence and Crown respectively. They had both testified at the first trial [2]. Both of them diagnosed Christopher Husbands with PTSD and ASPD. The Crown also proposed to call a forensic psychologist, Dr. Michael Bagby, who also agreed with the diagnosis of both PTSD and ASPD.

[11] The defence sought exclusion of reference to ASPD for the following reasons:

• It would not be proper for the Crown to posit, through the expert evidence, that Christopher Husbands was more likely to have shot volitionally because he had ASPD, criminal personality or general bad character.
• The evidence of ASPD is not particularly probative of any other issue at trial.
• The propensity reasoning inherent in this diagnosis is so overwhelming that any small probative value would be significantly overborne by its prejudicial effect.
• The diagnosis of ASPD engenders both moral and reasoning prejudice that is so strong it cannot be cured through jury instructions.

[12] The Crown opposed the application on the basis that reference to the ASPD diagnosis was a necessary and proper aspect of the NCR issue based on a mental disorder. The Crown specifically referred to the malingering and deception components of ASPD as relevant to assessing the factual foundations of the expert medical evidence called by the defence and Crown.

[13] The current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) sets out the diagnostic criteria for ASPD as follows, at p. 659:

A. A pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years, as indicated by three (or more) of the following:

(1) Failure to conform to social norms with respect to lawful behaviours, as indicated by repeatedly performing acts that are grounds for arrest. (2) Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure. (3) Impulsivity or failure to plan ahead. (4) Irritability and aggressiveness, as indicated by repeated physical fights or assaults. (5) Reckless disregard for safety of self or others. (6) Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behaviour or honor financial obligations. (7) Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

B. The individual is at least age 18 years. C. There is evidence of conduct disorder with onset before age 15 years. D. The occurrence of antisocial behaviour is not exclusively during the course of schizophrenia or bipolar disorder.

[14] The relevance and admissibility of references to ASPD in this case must be considered in the following context:

• The defence has raised the issue of mental disorder and has the onus of establishing that Christopher Husbands should be found NCR.
• Forensic experts for both the defence and Crown agree that Christopher Husbands was properly diagnosed with ASPD as well as PTSD.
• The forensic experts agree that the issue of malingering must be considered by them in assessing the validity of the symptoms claimed by Christopher Husbands. The issue of malingering relates to the accuracy and reliability of information provided by Christopher Husbands.
• The ASPD diagnosis is an important part of the factual foundation of the opinions reached by the respective experts.

[15] I agree with the defence’s concerns about certain propensity aspects of the diagnostic criteria for ASPD. However, the aspect of deceit related to ASPD was very relevant for the experts to consider related to the issue of malingering.

[16] Since the ASPD diagnosis is not in dispute between the experts, there is no need to refer to the propensity aspects before the jury.

[17] For these reasons, on October 19, 2018, I made the following order:

(1) The application to preclude reference to the ASPD diagnosis is dismissed. However, there will be some limits on evidence regarding certain aspects of that diagnosis. (2) There is no dispute that an ASPD diagnosis is premised in part on a finding that there was a conduct disorder in the accused’s adolescent years. A conduct disorder diagnosis would include rule breaking and criminal activity. Doctors Gojer and Collins agree that the accused exhibited a conduct disorder preceding the ASPD diagnosis. On that basis, it is unnecessary for questions or comments relating to the conduct disorder in the experts’ testimony. If another expert testifies at trial, who does not agree with the conduct disorder and ASPD diagnoses, then the issue may be explored with leave of the court. (3) The evidence related to ASPD should focus primarily on the disorder’s manipulation, malingering, and deception components as they relate to the NCR defence. (4) There are certain ASPD components that should be avoided. These include the following:

(i) Callousness; (ii) The high percentage of inmates in prison who have ASPD; (iii) Lack of remorse; (iv) Pervasive pattern of disregard for and violation of the rights of others; (v) Expected to break the law; (vi) Propensity for violence; and (vii) Drive to seek revenge.

[18] When making the order, I added that there may be further terms to add to this list. Counsel were permitted to make submissions on further terms after they reviewed and considered these brief rulings. As a result, in a later ruling, I also ordered that there should not be a reference to impulsivity as an aspect of ASPD.

Limiting References to Malingering in the Forensic Context

[19] The issue of potential malingering by Christopher Husbands of his symptoms was an important consideration for all of the expert witnesses and was relevant to the issue of NCR related to a mental disorder.

[20] The DSM-V at pp. 726 and 727 refers specifically to malingering and when it should be strongly suspected as follows:

Malingering

The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, malingering may represent adaptive behaviour – for example, feigning illness while a captive of the enemy during wartime. Malingering should be strongly suspected if any combination of the following is noted:

1. Medicolegal context of presentation (e.g., the individual is referred by an attorney to the clinician for examination, or the individual self-refers while litigation or criminal charges are pending).
2. Marked discrepancy between the individual’s claimed stress or disability and the objective findings and observations.
3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen.
4. The presence of antisocial personality disorder.

[21] The defence applied to exclude reference to circumstances where the subject may have a motive to malinger or fabricate symptoms to avoid civil or criminal liability. The concern was that such references would unfairly suggest that an accused who testifies in his own defence should be disbelieved as he has a motive to deceive the jury for his own benefit. This would have infringed on the presumption of innocence.

[22] In R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 12-15, the Supreme Court of Canada held that there is no absolute bar against considering that an accused may have a motive to lie because of his or her interest in the outcome:

[12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering the accused’s motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, she stated as follows (at pp. 798-99):

It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur. [Emphasis added.]

[13] Counsel for Mr. Laboucan argues that it is inherently wrong in every case to consider an accused’s interest in the outcome of the trial, as no useful inference can be drawn from that fact. She therefore urges the Court to adopt an absolute prohibition against considering the accused’s motive to lie in assessing his or her credibility as a witness.

[14] In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal. However, I would not adopt an absolute rule as proposed, for the following reasons.

[15] An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. Courts have consistently rejected prohibitive rules that would result in a trier of fact acting upon a misleading view of a case. For example, there is a general rule prohibiting the Crown from introducing evidence about the accused’s bad character. However, in McMillan v. The Queen, [1977] 2 S.C.R. 824, where the accused called evidence that his wife was psychopathic, making her the likely killer of an infant, the Court held that the Crown could adduce evidence of the accused’s similar disposition. Otherwise the jury would have been left with an entirely distorted picture. Similarly, in R. v. Corbett, [1988] 1 S.C.R. 670, where the defence had vigorously attacked the credibility of the Crown witnesses, making much of their criminal records, Dickson C.J. held that “a serious imbalance would have arisen” had the jury not been apprised of the accused’s criminal record (p. 690). This opened up the opportunity for a more extensive cross-examination on the accused’s criminal record that might otherwise be viewed as unduly prejudicial. Therefore, whether or not it is appropriate for the trier of fact to consider that the accused may have a motive to lie because of his or her interest in the trial will depend on the evidence and the issues raised at trial.

[23] If the presumption of innocence was the only critical presumption applicable in this case, the concern of the defence would be valid. However, in this case there is also the presumption of criminal responsibility and the onus is on the defence to establish that Christopher Husbands was NCR on a balance of probabilities: Criminal Code, R.S.C. 1985, c. C-46, s. 16.

[24] In R. v. Rabey, [1980] 2 S.C.R. 513, at p. 546, the court referred to automatism as a defence that can be easily feigned. Evidence of unconsciousness throughout the commission of a crime should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition that points to a disease requiring detention and treatment (at p. 552).

[25] In R. v. Alexander, 2015 BCCA 484, 330 C.C.C. (3d) 417, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 40, the accused had killed her husband after an emotional shock. She asserted both mental and non-mental disorder automatism and that she had been in a disassociated state. Her conviction for second degree murder was upheld on appeal. The appeal court indicated that feigning is part of the psychiatric experience with amnesia and part of the context in which a jury should consider the defence of automatism (at para. 106).

[26] The DSM-V clearly sets out the circumstances where a forensic or clinical assessor should strongly suspect malingering. It does not amount to a presumption of malingering, or that Christopher Husbands in fact malingered. It is among various factors, including the presence of ASPD which also applies in this case. The differing conclusions of the defence and Crown experts on the issue of malingering will have to be considered by the jury based on the factual foundation of the opinions and the methodology used by the experts.

[27] For these reasons, on January 15, 2019, I made the following order:

(1) The application to limit the scope of reference to malingering concerns by the experts to be called by the Crown is dismissed. (2) The jury will be instructed that it must first deal with the NCR issue. Potential malingering in a forensic context is to be relevant only to that aspect. (3) If the jury is not satisfied that the defence has established NCR, it must then go on to consider whether the Crown has proven the essential elements of the offences beyond a reasonable doubt. On that aspect of the trial, Christopher Husbands is presumed innocent. (4) The forensic consideration of potential malingering does not apply to a consideration of the evidence of Christopher Husbands as to whether the offences have been proven beyond a reasonable doubt. On that phase of its deliberation, the jury will be instructed that it must consider the evidence of Christopher Husbands in accord with the principles set out in R. v. W.(D)., [1991] 1 S.C.R. 742.

[28] In the result, the applications were dismissed on the terms indicated.

B. P. O’MARRA J. Released: March 13, 2019

COURT FILE NO.: CR-17-10000604 DATE: 20190313 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER HUSBANDS Applicant

RULINGS RELATED TO A NOT CRIMINALLY RESPONSIBLE DEFENCE B. P. O’MARRA, J. Released: March 13, 2019

Footnotes

[1] “Dissociate” is defined as “the splitting off of clusters of mental contents from conscious awareness” by the Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (Washington, D.C.: American Psychiatric Association, 2013), at p. 820 [DSM-V].

[2] Christopher Husbands was first convicted in 2014. The conviction was overturned on appeal and a new trial was ordered.