Court File and Parties

COURT FILE NO.: CR-17-10000604-0000 DATE: 20190408 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 19 and 27, October 19 and November 14, 2018

RULING ON AN APPLICATION TO EXCLUDE VIVA VOCE EVIDENCE OF CERTAIN CROWN WITNESSES

B. P. O’MARRA, j.

OVERVIEW

[1] In 2014, Christopher Husbands was convicted of 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. On appeal, a new trial was ordered.

[2] Christopher Husbands admitted at both trials that on June 2, 2012, he fired shots from a handgun in the crowded food court of the Toronto Eaton Centre that caused the two deaths and the injuries referred to on the indictment. One of the victims on the aggravated assault counts was 13-year-old Connor Stevenson. He was in the food court that day with his sister, Taylor Stevenson, and his mother, Jo-Anne Finney, when he was struck in the head by a bullet fired by Christopher Husbands.

[3] Connor Stevenson testified at the first trial. I was advised by Crown counsel that Connor’s medical situation is now such that he cannot testify in person at the retrial. The Crown applies to play the audio recording of his evidence from the first trial pursuant to s. 715 of the Criminal Code, R.S.C. 1985, c. C-46. There was no cross-examination of Connor, his sister or his mother at the first trial.

[4] The uncontested evidence of Connor, his sister and his mother would include the following:

(1) They came to Toronto to attend a matinee production of a show near the Eaton Centre. (2) After they left the show, they went to the Eaton Centre to shop and then to the food court to get something to eat. (3) After they sat down to eat, they each heard a number of gunshots. Before that, they did not hear or observe any argument or altercation. None of them saw the shooter. (4) Connor was struck in the head by a bullet. (5) Taylor Stevenson and Jo-Anne Finney saw Connor lying on the ground with blood surrounding his head. They tried to comfort him and keep him alert. By the time paramedics arrived, Connor had gone stiff and lost consciousness. (6) Connor was rushed to Sick Kids Hospital. He required at least four surgeries for his injuries. (7) Since the first trial, Connor’s condition deteriorated both physically and psychologically.

THE APPLICATION

[5] The defence applied for an order that the evidence of Connor, his sister and his mother not be presented viva voce or by the playing of his evidence from the first trial. Based on the admissions by Christopher Husbands and the live issues at trial, the defence submitted that the prejudicial impact of the presentation of their evidence would outweigh any probative value. The Crown opposed the application.

[6] On September 27, 2018, I ruled that the application was allowed for reasons to follow. I also advised counsel to work towards an agreed statement that would comprehensively reflect the evidence of these three witnesses.

[7] On November 22, 2018, counsel advised that they had agreed on the terms of agreed statements. The defence submitted that the agreed statements should be read to the jury but not filed as exhibits. After hearing submissions on that issue, I ruled that the agreed statements for each of the three witnesses would be read to the jury and filed as exhibits on the trial.

[8] The trial has now been completed. These are my reasons.

ANALYSIS

[9] The main issue on this application is whether the probative value of playing Connor’s evidence from the first trial or hearing the viva voce evidence of his sister and mother outweighs its prejudicial effect. To determine this, the specific factual and legal context of this trial must be considered. The following important facts are not in dispute:

(1) On February 28, 2012, Christopher Husbands was assaulted, forcibly confined, threatened and stabbed by a group of six men including Nixon and Nisan Nirmalendran. (2) On June 2, 2012, Christopher Husbands was in the food court at the Eaton Centre with his girlfriend. He was suffering from Post-Traumatic Stress Disorder (PTSD) related significantly to what had happened to him on February 28, 2012. He was carrying a loaded handgun in a satchel. (3) While in the food court, Christopher Husbands saw a group of men including Nixon and Nisan walking past him. He had not seen them since the events of February 28, 2012. (4) Christopher Husbands drew his handgun and began firing shots towards the group of men, including Nixon and Nisan. Nixon and a man named Ahmed Hassan were struck and killed. Nisan and the others in the group ran away and were not hit. (5) Christopher Husbands fired a total of 14 shots. In addition to the two deceased, five other people in the food court were struck by bullets. Connor Stevenson was one of those injured persons. (6) Surveillance cameras at numerous locations in the Eaton Centre and specifically in the food court captured images of the actions of Christopher Husbands and the five men he shot at before, during and after the shooting. (7) Numerous witnesses who were in and near the food court when the shots were fired are available to testify. They include Robert Cada, who was with Nixon, Nisan and Mr. Hassan, as well as Christopher Husbands’ girlfriend at the time.

[10] The legal context of this trial is as follows:

(1) The Crown alleges that Christopher Husbands fired the shots at the group of five with the intention of killing Nixon and Nisan. Mr. Hassan was struck by bullets intended for them. (2) The defence asserts that Christopher Husbands should be found Not Criminally Responsible (NCR) since he was in a dissociative state when he fired the shots. That dissociative/involuntary state was a result of his pre-existing PTSD and the shock of seeing two of his attackers from February 28, 2012 for the first time since that event. (3) The Crown’s position is that notwithstanding the PTSD, Christopher Husbands had a motive to shoot and kill Nixon and Nisan based on the events of February 28, 2012 and that he fired the shots voluntarily and intentionally at them. (4) The defence agreed that the gunshot injuries caused to the five other victims, including Connor, met the definition of aggravated assault. If the defence of NCR was not successful, and if the shots were fired intentionally and voluntarily, then all five counts of aggravated assault were made out.

[11] In this case, Christopher Husbands has admitted certain facts pursuant to s. 655 of the Criminal Code, which provides as follows:

Admissions at trial

655 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

[12] The Supreme Court of Canada in R. v. Castellani, [1970] S.C.R. 310 considered this section of the Criminal Code (then s. 562) at pp. 315-316:

In a criminal case, there being no pleadings, there are no precisely worded allegations of fact which are susceptible of categorical admission. An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to s. 562 it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline to do so. He cannot frame the wording of the allegation to suit his own purposes and then insist on admitting it. To permit such a course could only lead to confusion. The idea of the admission of an allegation involves action by two persons, one who makes the allegation and another who admits it.

[13] Evidence regarding admitted facts has low probative value because it relates to undisputed factual or legal issues. As a result, a court should consider what facts have been admitted in determining whether the prejudicial effect of evidence outweighs its probative value, as demonstrated by the cases below.

[14] In R. v. Hurd, 2011 ONSC 1857, the accused was charged with first degree murder. He admitted that he sexually assaulted and unlawfully caused the death of the victim. He claimed he lacked the requisite intent for murder based on impairment. The defence sought to exclude the 911 audio call made by the victim that recorded the sexual nature of the attack and the events leading to her death. The defence characterized the audio as “stark horror” and so prejudicial that it should be filed as a transcript rather than played for the jury. The Crown submitted that it was important for the jury to hear the voice of the accused in order to assess his level of intoxication. The application was dismissed. Sproat J. found that there was substantial probative value, relevant to the central issue of intent, in listening to the audio recording.

[15] In R. v. Rafferty, 2012 ONSC 1098, the Court considered the admissibility of certain graphic photographs of the body of the young victim on a particularly gruesome murder case. The defence submitted that the admission of those photographs would likely invoke strong emotional responses from the jurors that would incite an overwhelming desire to punish the perpetrator. Heeney J. ruled that most of the photographs in issue had a potential probative value that exceeded any prejudicial impact. The specific issues the photographs would assist the jury with were the following:

(1) They would assist the jury in understanding the limitations of the forensic evidence; (2) They assisted in demonstrating certain positive findings that were relevant to the cause of death and corroborated the evidence of the alleged accomplice; and (3) They would assist the jurors in reaching their own independent opinions as to the reliability of the doctor’s conclusions as they helped explain the process he followed during the post-mortem examination and the basis for his conclusions.

[16] In R. v. Blair, [2008] O.J. No. 2464 (S.C.), at para. 4, Nordheimer J. (as he then was) indicated that as a matter of general principle, if the defence is prepared to admit a fact “in full and without qualification”, then the prosecution ought not to be permitted to lead the same evidence.

[17] In R. v. J.S.R. (2008), 236 C.C.C. (3d) 486 (S.C.), the accused faced charges of second degree murder, a number of counts of attempted murder and various weapons charges arising from a shootout on Yonge Street in Toronto. The Crown sought to introduce photographs of the murder victim’s post-mortem examination and the testimony of the victim’s sister. The post-mortem photographs showed the bullet’s entry in the victim’s back and exit wound in the neck. The accused conceded the cause of death. The victim was an innocent bystander. Her sister was expected to testify that she had been with the victim immediately prior to the shootout and that the victim crossed the street to use the washroom. She never saw her sister again. She did not appear to have witnessed anything further that was relevant to the shooting. Nordheimer J. (as he then was) ruled the evidence inadmissible. He found that based on the admissions by the defence, the post-mortem photographs had no probative value but were highly prejudicial in that they clearly showed bullet holes in the body of a 15-year-old girl. The sister’s evidence could not assist the jury in determining who was responsible for the shooting and the corresponding deaths and injuries. Her evidence about the last moments with her sister would create high emotion. The Court held that this was not a situation where the defence had recast the facts that the prosecution sought to prove and then purport to admit its version.

[18] In this case, I recognize that the shooting at the Eaton Centre and the death and injuries that were caused were the subject of significant media and public interest immediately thereafter. Connor and others were totally innocent victims who suffered varying degrees of physical and psychological harm. Connor’s injuries were catastrophic and life changing. Anyone hearing about the impact of these crimes on him could only feel great sympathy for him and his family.

[19] I found the reasons and decision of Nordheimer J. (as he then was) in J.S.R. most helpful on the issues presented here. Based on the specific admissions and the specific legal and factual content of this trial, Connor’s viva voce evidence, or playing his testimony from the first trial, would not assist the jury on any of the contentious issues they must decide. The same goes for the viva voce evidence of his sister and mother. Their evidence does not aid in determining whether Mr. Husbands’ conduct that day demonstrates that he is not criminally responsible for his actions since none of them heard or observed any argument or altercation before the shooting or saw the shooter. Hearing and seeing them testify could only add a further layer of emotion and sympathy that could be prejudicial to the accused.

[20] In response to the defence’s concern about the emotional impact of viva voce evidence from Connor, his sister and his mother, the Crown referred to the anticipated evidence related to the events of February 28, 2012. Christopher Husbands will testify as to the threats and injuries he suffered on that day and thereafter. There will be photographs of his injuries and medical evidence from a forensic pathologist. The Crown submits that evidence could engender sympathy for Christopher Husbands. I understand the Crown’s position to be that the proposed evidence of Connor would in effect balance the sympathy between Connor and the accused.

[21] However, the attack on Christopher Husbands on February 28, 2012, including its specifics and aftermath, are highly relevant to important issues that the jury will have to decide. The Crown and defence’s medical experts agree that Christopher Husbands had PTSD on the date of the shooting related significantly to the events of February 28, 2012. The Crown and defence’s medical experts disagree as to the severity of the PTSD as of the date of the shooting. The respective experts based their opinions in part on specific information from Christopher Husbands and observations of him by others on and after February 28, 2012. It is therefore highly probative as to the specific legal and factual issues in this trial, in particular, whether Christopher Husbands is not criminally responsible for his actions at the Eaton Centre.

RESULT

[22] This case involves the violent deaths of two men and serious injuries to totally innocent bystanders. The injuries to Connor were more devastating and long-lasting than the others. Presenting the evidence of Connor, his sister and his mother by way of fulsome agreed statements of fact in no way diminishes the nature of his injuries, nor does it sanitize or scrub the facts to present what happened in the food court as any less deadly and dangerous than it was.

[23] My ruling is not to exclude the evidence of Connor, his sister and his mother. Rather, it involves an alternate presentation of that evidence that does not impede in any way the full and fair presentation of the Crown’s case. In the words of the Blair decision, there will be an agreed statement of their evidence that is “full and without qualification.” At my request, the parties were able to draft formal admissions pursuant to s. 655 of the Criminal Code for each of Connor, his sister and his mother.

[24] A further issue arose based on the defence’s submission that the three agreed statements of fact should be read to the jury but not filed as exhibits. This issue was addressed by Watt J. (as he then was) in R. v. Fatima and Khan, [2004] O.J. No. 6155 (S.C.), at paras. 41-46:

41 In this case, the parties have reduced several formal admissions of fact to writing. The contents of each admission will be read to jurors by a prosecutor at an opportune time during the prosecution’s case in-chief. And the jurors will be instructed, when the admissions are read, and later, about the evidentiary effect of admissions.

42 There seems no real reason to refuse to permit formal admissions reduced to writing to be filed as exhibits at trial.

43 There is no rule of evidence advanced to support a claim that would bar introduction of formal admissions in writing as exhibits at trial. Neither does current practice intercede, despite a lack of uniformity. The contents of each admission enter trial proceedings without limitation as proof of the facts asserted. There is not, in other words, an articulable concern about improper jury use from the simple fact of filing, as there may be with the prior statements of witnesses, whether consistent or inconsistent with their trial testimony.

44 Any time a document is read to jurors, then filed as an exhibit, it could be said that we permit cumulative evidence and risk its undue influence or emphasis in the jurors’ decision. The observation is overinclusive, sometimes but not always accurate. And it gives little credit to the trier of fact, for it carries with it the implication that it is repetition that proves rather than substance.

45 In this case, I am satisfied, there is no realistic risk that filing the words read aloud will result in an emphasis upon them or an influence by them that is disproportionate to their significance in the case. They deal with subjects that are largely part of the landscape. Investigative background for the most part. The frame not the picture. [Emphasis in original.]

[25] Similarly, I see no reason to not have the agreed statements of Connor, his sister and his mother filed as exhibits after they have been read to the jury.

[26] In the result, the defence’s application is allowed. The evidence of Connor from the first trial will not be played, nor will that of his sister or mother be presented viva voce, as the prejudicial impact of this evidence would outweigh any probative value. Their evidence will, however, be presented to the jury in writing and be submitted as an exhibit.

B. P. O’Marra, J. Released: April 8, 2019