COURT FILE NO.: CR-17-10000604-0000 DATE: 20190320
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: September 26 and October 5, 2018
RULING ON AN APPLICATION TO ADMIT A HEARSAY STATEMENT
B. P. O’MARRA, j.
OVERVIEW
[1] On June 2, 2012, deaths and injuries occurred when shots were fired in the crowded food court of the Toronto Eaton Centre. Christopher Husbands admitted that he fired the shots. He faced a nine-count indictment charging the following: two counts of second degree murder, five counts of aggravated assault, criminal negligence causing bodily harm and discharging a firearm in a public place. The two deceased were Ahmed Hassan and Nixon Nirmalendran.
[2] Nisan Nirmalendran was the younger brother of Nixon. He was walking with the two homicide victims and two other men when the shots were fired. Nisan ran away and was not injured. On July 9, 2012, Nisan provided an audio-taped statement to the police related to the events of June 2, 2012. On March 21, 2013, Nisan was shot dead in an unrelated incident.
[3] At Christopher Husbands’ first trial in 2014, the statement of Nisan was admitted on consent subject to editing. Christopher Husbands was convicted. On appeal, a new trial was ordered. During this retrial, the Crown applied to have the statement admitted. The defence opposed the admission of the statement. If the statement was ruled admissible, the defence submitted it should be admitted in its entirety in order to assess the substantive reliability, probative value and prejudicial effect.
[4] On October 5, 2018, I dismissed the application with reasons to follow. The trial has now been completed. These are my reasons.
THE EVIDENCE ON THE APPLICATION
[5] Most of the evidence on the application is not in dispute.
[6] On February 28, 2012, Christopher Husbands was attacked, confined, threatened and stabbed by a group of six men, including Nixon and Nisan. Christopher Husbands had known them both for many years.
[7] On June 2, 2012, Christopher Husbands carried a loaded handgun in a satchel when he and his girlfriend went to the Eaton Centre. When they were in the food court, he saw a group of five men including Nixon and Nisan approaching him. He had not seen them since he was attacked on February 28, 2012. He claimed that he saw Nisan reach for his pocket and someone from the group of five men said “shoot him”. He did not claim to have seen a gun. Christopher Husbands then fired fourteen shots towards the group of men, killing Mr. Hassan and Nixon. Nisan and the two other men ran away and were not struck by bullets.
[8] There is no dispute that on June 2, 2012, Christopher Husbands had Post Traumatic Stress Disorder (PTSD) related significantly to the events of February 28, 2012. The defence declared from the outset of the retrial that Christopher Husbands should be found not criminally responsible (NCR) for the deaths and injuries he caused. This position was based on a state of dissociation/automatism triggered by a combination of PTSD and the psychological blow of seeing Nixon and Nisan for the first time since the stabbing incident. Conversely, the Crown’s position was that Christopher Husbands’ actions were voluntary and intentional, motivated by revenge against those who had stabbed him on February 28, 2012.
CIRCUMSTANCES OF THE STATEMENT OF NISAN
[9] Two detectives from the Toronto Police Service (TPS) Homicide Squad were assigned to locate and interview Nisan after the shooting. They had information that Nisan was on probation at the time. He had received a suspended sentence on October 24, 2011 for forcible entry and assault. The officers waited in their unmarked car on July 9, 2012 near a probation office where Nisan was expected to report at 11:00 a.m. Shortly thereafter, they observed Nisan enter the probation office. When he left the office, the officers approached him and said they would like to speak with him. They asked if he would speak to them on video about the events of June 2, 2012. Nisan said he did not really want to do that. The officers offered to interview him by audio tape in their car. He agreed to that.
[10] The unsworn audio interview lasted approximately 50 minutes. A transcript was filed on this application. Nisan was cautioned about false statements and agreed he freely chose to make a statement about the deaths of Nixon and Mr. Hassan.
[11] Nisan told the police that in the 35 days since the shooting he had watched news stories about the event. At one point he told the officers “I heard one gunshot then I shot…” There were no follow-up questions or clarifications as to what he meant by “I shot.” It could possibly mean either that he ran away or that he fired a shot. Early in the statement, Nisan said if someone in his group was armed they would have told one another. He later contradicted that statement.
OTHER AVAILABLE EVIDENCE OF EVENTS BEFORE, DURING AND AFTER THE SHOOTING
[12] There is a significant amount of other evidence that is both relevant and admissible as to the events in the food court before, during and after the shooting, including the following:
(a) Extensive video by surveillance cameras at various locations in the Eaton Centre that capture images of Christopher Husbands and his girlfriend at locations before and after they arrive in the food court. The videos also capture the group of five men, including Nixon, Nisan, Mr. Hassan and Robert Cada before, during and after the shots are fired. (b) Eyewitness testimony of people in the food court before, during and after the shooting. This includes the testimony of Christopher Husbands’ girlfriend and Mr. Cada. (c) Extensive forensic evidence from the shooting scene and post-mortem examinations of the two deceased.
PROPOSED EDITS BY THE CROWN IF THE HEARSAY STATEMENT IS ADMITTED
[13] The following are the proposed edits by the Crown:
- Page 40:
- Summary of the Words of Nisan Nirmalendran: Mr. Husbands is a good guy
- Reason for the Editing: Nisan’s opinion of Mr. Husbands’ character is irrelevant
- Page 42:
- Summary of the Words of Nisan Nirmalendran: Nisan’s lawyer said that Nixon never had any gang affiliation
- Reason for the Editing: Double hearsay
- Page 45:
- Summary of the Words of Nisan Nirmalendran: Mr. Husbands probably just thought he seen one of the guys that did that to him [referring to the stabbing incident]
- Reason for the Editing: Speculation as to Mr. Husbands’ state of mind
- Pages 56-60:
- Summary of the Words of Nisan Nirmalendran: Discussion about why Nixon would be targeted and how someone on the street could have a grudge on him because he was acquitted of the murder charge. He was one of the co-accused with these guys. He doesn’t know a lot of people on the street. They know and recognize him.
- Reason for the Editing: The lengthy portion is edited because it refers to Nixon being in jail for the murder charge and the fact that the charges were withdrawn. Nisan speculates as to reasons why Nixon may be targeted by others, which is not relevant to Mr. Husbands.
- Pages 62-64:
- Summary of the Words of Nisan Nirmalendran: The media talks about the stabbing but a lot of people know that Nixon had nothing to do with the stabbing. The word on the street is that Somolians [sic] did that. Some people know how to keep it to themselves and others talk and it will come back to them you know.
- Reason for the Editing: Most of the portion is inadmissible hearsay. Query whether the portion at the end about the “Code of Silence” is inadmissible because it is connected to the earlier comment.
- Page 66:
- Summary of the Words of Nisan Nirmalendran: Mr. Hassan worked and was a laid back person. Mr. Hassan was involved in stupid robberies. He got caught up in the life, but there is nothing bad about him.
- Reason for the Editing: Like Mr. Husbands above, Nisan’s opinion of Mr. Hassan’s character is irrelevant. The fact that he is involved in robberies is also irrelevant and prejudicial at this stage.
- Pages 76-86:
- Summary of the Words of Nisan Nirmalendran: Discussion about the fact that Nixon could have been shot in Regent Park so many other times. He would be in Regent Park with no gun on him, just standing there smoking. There were so many times when someone could have run up and shot at him. The stabbing was in March and he was shot in June and my brother was out on the streets. I know Mr. Husbands seen my brother before. He heard that Mr. Husbands had problems with people in the Regent Park area. The news said Mr. Husbands was on house arrest and people saw him in the area of Regent Park. He’s been hanging out in the last few months. He could have done it enough times in Regent Park when he saw my brother. It doesn’t make sense. So he does it in the Eaton’s Centre when a couple of guys are around my brother.
- Reason for the Editing: This portion is based on Nisan’s speculative opinion and inadmissible hearsay evidence.
- Pages 88-90:
- Summary of the Words of Nisan Nirmalendran: Nixon wasn’t targeted. I know he wasn’t targeted or he would have been gone a long time ago. Why would it take four months after the stabbing when Mr. Husbands seen him in the area enough times? Mr. Husbands could have had problems with any of these people.
- Reason for the Editing: This is all speculation as to why Mr. Husbands killed Nixon. The video footage shows that Nixon was targeted. Independent witnesses state that the shooting was targeted.
ADMISSIBILITY OF HEARSAY
[14] Hearsay statements are presumptively inadmissible when tendered for the truth of their contents. The statement of Nisan was clearly relevant and was being tendered for its truth. However, there was no opportunity to cross-examine him either at the preliminary hearing or at the first trial. The admissibility of that statement for the truth of its content depends on the following factors: necessity, reliability and the weighing of probative value and prejudicial effect.
Necessity
[15] Necessity refers to the necessity of hearsay evidence to prove a fact in issue. The criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What those situations have in common is that the relevant direct evidence is not, for a variety of reasons, available: R. v. Smith, [1992] 2 S.C.R. 915, at pp. 933-934.
[16] The issue on necessity is the availability of the testimony, not the availability of the witness: R. v. Parrott, [2001] 1 S.C.R. 178, 2001 SCC 3, at para. 64.
[17] A key factor under necessity is that it is not possible to get evidence of the same value from any other source: Smith, at pp. 933-934, and R. v. B. (K.G.), [1993] 1 S.C.R. 740, at pp. 796-797.
Reliability
[18] The trial judge acts as a gate-keeper in the initial assessment of the threshold reliability of the hearsay statement and leaves the ultimate determination of its worth to the fact finder: R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, at paras. 2 and 50.
[19] Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. The hearsay dangers can be overcome and threshold reliability can be established by showing that: (1) there are adequate substitutes for testing truth and accuracy (procedural reliability); or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy: R. v. Bradshaw, [2017] 1 S.C.R. 865, 2017 SCC 35, at paras. 26, 27 and 32.
[20] The criterion for threshold reliability is usually met by showing that sufficient trust can be put in the truth and accuracy of the statement because of the way in which it came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess its worth. The two ways of demonstrating threshold reliability are not mutually exclusive: R. v. Blackman, [2008] 2 S.C.R. 298, 2008 SCC 37, at para. 35.
[21] Counsel need not eliminate all possible sources of doubt about the perception, memory or sincerity of the declarant. All that is required is that all the circumstances in which the statement was made and any relevant extrinsic evidence provides the trier of fact with the means to critically evaluate the honesty and accuracy of the declarant: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 193, at para. 111.
[22] Procedural reliability is established when there are adequate substitutes for testing the evidence, given that the declarant has not stated the evidence in court, under oath or affirmation, and under the scrutiny of contemporaneous cross-examination. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath or affirmation, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross examination of a recanting witness at trial, is usually required: Bradshaw, at para. 28.
[23] Whether the declarant had a motive to fabricate is a factor in assessing threshold reliability and circumstantial guarantees of trustworthiness. The party tendering the hearsay evidence must show it was made under circumstances of trustworthiness: R. v. Czibulka (2004), 189 C.C.C. (3d) 199 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 502, at paras. 35-45.
ANALYSIS
[24] The overarching issues in this case are whether Christopher Husbands was criminally responsible when he fired the shots, and if so, whether he had the necessary intent to commit the alleged offences. The Crown seeks to rely on the statement of Nisan for its truth and to prove that Christopher Husbands had the requisite intent.
[25] The death of Nisan does not render this evidence necessary. In addition to the admissions by the accused, there is significant other evidence of what happened before, during and after the shooting. This includes the following:
(a) A complete video record from various cameras and locations in the food court; (b) Viva voce evidence of witnesses in the food court. This includes Mr. Cada, who was in the group of five including Nisan, Nixon and Mr. Hassan when the shots were fired; and (c) Forensic evidence of bullet wounds to the seven victims as well as photos of the scene taken by police and recovery of shell casings.
[26] For the following reasons, the hearsay statement of Nisan does not rise to the level of threshold reliability:
(1) The statement is not on video and not under oath or affirmation. These are not necessarily conditions precedent for admissibility but are significant in the particular circumstances; (2) There is a lack of clarification or cross-examination on significant parts of the statement (i.e. “I shot…”); (3) The significant time span between the shooting and the statement, during which Nisan heard or observed news events about the event, raises concerns about tainting; (4) There would be a significant potential motive for Nisan to downplay his actions and others in the group just before the shooting; and (5) There is an obvious potential motive for Nisan to implicate Christopher Husbands in the intentional shooting death of his brother.
[27] The lack of adequate substitutes for testing this evidence in the absence of a prior oath or affirmation renders it inadmissible.
[28] In the result, the application is dismissed.
B. P. O’Marra, J. Released: March 20, 2019