OVERVIEW

[1] In 2014, Christopher Husbands was convicted of 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 deaths and injuries were caused when he fired shots in the crowded food court of the Toronto Eaton Centre on June 2, 2012. On appeal, a new trial was ordered.

[2] Christopher Husbands testified at the first trial. At the outset of the retrial, the defence declared that Christopher Husbands would testify and admit that he fired the shots but sought verdicts of Not Criminally Responsible based on a mental disorder. His credibility would be a critical issue. His criminal antecedents, including a criminal record and other criminal activity for which he was never charged, would be admitted on consent with one exception. Pursuant to the principles set out in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, the defence sought to exclude reference to a sexual assault conviction.

[3] On a related issue, the Crown applied to refer to the fact that Christopher Husbands was on bail at the time of the shooting on June 2, 2012.

[4] On December 18, 2018, I ruled that there should not be reference to either the sexual assault conviction or that Christopher Husbands was on bail at the time of the shooting. The sexual assault conviction would be read down to refer to assault with a jail sentence and probation for two years.

[5] The trial is now complete. These are my reasons.

THE CRIMINAL ANTECEDENTS OF CHRISTOPHER HUSBANDS

[6] Christopher Husbands had the following criminal convictions:

UNREDACTED

Date of Conviction	Offence	Sentence
2009-02-06	(1) Poss. of a schedule II substance (Marijuana), s. 4(5) Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDS Act] (2) Fail to comply with conditions of undertaking given by officer in charge, s. 145(5.1) of the Criminal Code, R.S.C. 1985, c. C-46 [CC]	$450 $300
2009-06-01	Fail to comply with recognizance, s. 145(3) CC	Suspended sentence and probation 12 months
2010-09-24	Poss. of a schedule I substance (Cocaine), s. 4(3) CDS Act	$400
2012-04-23	(1) Obstruct police officer, s. 129(a) CC (2 charges) (2) Fail to comply with recognizance, s. 145(3) CC (2 charges) (3) Poss. of a schedule II substance (Marijuana), s. 4(1) CDS Act	(1) and (2) 1 day & 4 mos. pre-sentence custody conc. (3) $200
2012-10-23	Sexual assault, s. 271 CC	12 mos. custody (17 days PSC) and 2 years’ probation

[7] The complainant on the sexual assault conviction was Christopher Husbands’ former common law spouse, C.R. She was estranged from Christopher Husbands at the time of the shooting on June 2, 2012. She testified at both trials that Christopher Husbands said things to her before the shooting that suggested he sought revenge against the people he later shot at on June 2, 2012. Her evidence was quite contentious and the defence submitted she held an animus towards Christopher Husbands related to family issues between them.

[8] In addition to his criminal convictions, Christopher Husbands had led a criminal lifestyle from his teenage years. That related to other serious criminal activity for which he was never charged, including the following:

(i) The production, possession and sale of drugs, including cocaine;

(ii) The “cooking” of cocaine to produce crack cocaine for trafficking; and

(iii) The possession of illegal firearms on occasions other than the day of the shooting on June 2, 2012.

[9] At the first trial and again at this trial, Christopher Husbands would refer in chief to his criminal record (other than the sexual assault conviction) and the other criminal activity for which he was never charged. Christopher Husbands also admitted as part of the Crown’s case in chief that on June 2, 2012, he had in his possession an unlicensed loaded handgun which he carried in a satchel to the Eaton Centre.

POSITION OF THE PARTIES

[10] The defence position was that the sexual assault conviction could be prejudicial bearing in mind that the criminal record was relevant for the limited purpose of assessing credibility. Christopher Husbands would not dispute the remainder of his criminal record and would also admit to extensive and serious criminal conduct for which he was never charged.

[11] The Crown submitted that the sexual assault conviction and the fact that Christopher Husbands was on bail at the time of the offence were relevant and necessary information related to the mental disorder defence. The main Crown and defence medical experts agreed that Christopher Husbands had Post-Traumatic Stress Disorder (PTSD) and Antisocial Personality Disorder (ASPD) at the time of the shooting. One of the diagnostic criteria for the latter, according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-V),[^1] is a pattern of rule-breaking and criminal conduct. Further aspects of ASPD are deceit and manipulation. Therefore, the Crown submitted that Christopher Husbands’ criminal conduct was relevant to a diagnosis of ASPD.

[12] The Crown also submitted that the defence would be referring to the criminal lifestyle and convictions of the two deceased men. On that basis, the jury should receive the complete record of Christopher Husbands and the fact that he was on bail at the time of the shooting.

ANALYSIS

[13] In a ruling on October 19, 2018, and in reasons reported at 2019 ONSC 1590, I dismissed a defence application to exclude reference to the ASPD diagnosis. I set out limitations related to some diagnostic criteria of ASPD. I agreed with the defence’s concerns about certain propensity criteria, which included rule-breaking and criminal conduct. However, the criteria of deceit and manipulation were relevant and important factors as they related to malingering, which the experts agreed they had to consider in assessing the accuracy and reliability of the information provided by Christopher Husbands about the symptoms he claimed he suffered. Therefore, malingering would be an important issue related to the mental disorder defence.

[14] Based on s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5 and the Corbett line of cases, a trial judge has limited discretion to edit the criminal record of an accused person who testifies. The starting point is that the complete record of criminal convictions may be considered by the jury in assessing the credibility of the accused. The jury may not consider the record as evidence of bad character or propensity. If the defence refers to criminal lifestyles or convictions of Crown witnesses or deceased victims, the jury must be given a balanced and fair view of the criminal history of the accused.

[15] The defence did not dispute and specifically agreed that the jury would receive evidence of the criminal lifestyle and prior convictions of Christopher Husbands (other than the sexual assault). The former included serious criminal conduct for which he was never charged, including drug dealing and possession of illegal firearms. His record included breaches of court orders. In my view, the additional reference to the sexual assault conviction and the fact Christopher Husbands was on bail at the time of the shooting is unnecessary to present a fair and accurate picture of his criminal antecedents. Reference to those two items could distract the jury and be prejudicial to Christopher Husbands.

[16] The Crown’s response relates less to the Corbett issue and more to the mental disorder defence. If the ASPD diagnosis was contentious, it may have been necessary to have a complete review of Christopher Husbands’ criminal past, including the items in issue on this application. However, since the ASPD diagnosis was not in dispute, it was not necessary to do so. Christopher Husbands’ criminal past without reference to the sexual assault or bail violation provided sufficient information for the jury to properly consider the issues of deceit and malingering related to ASPD.

[17] In the result, the defence application to exclude reference to the sexual assault conviction and the fact that Christopher Husbands was on bail at the relevant time was allowed.

B. P. O’Marra, J.

Released: April 24, 2019

COURT FILE NO.: CR-17-10000604-0000

DATE: 20190424

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

CHRISTOPHER HUSBANDS

Applicant

RULINGS RELATED TO A CORBETT APPLICATION AND RELATED ISSUES

B. P. O’MARRA, J.

Released: April 24, 2019

[^1]: Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (Washington, D.C.: American Psychiatric Association, 2013), at p. 659.

R. v. Husbands, 2019 ONSC 2458

Case Summary

OVERVIEW

THE CRIMINAL ANTECEDENTS OF CHRISTOPHER HUSBANDS

POSITION OF THE PARTIES

ANALYSIS

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 3