COURT FILE NO.: CR-17-10000604-0000
DATE: 20190514
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
CHRISTOPHER HUSBANDS
Respondent
M. Humphrey and J. Cisorio, for the Crown
D. Derstine and S. DiGiuseppe, for the Respondent
HEARD: October 12, 17 and 19, 2018
RULING ON THE ADMISSIBILITY OF EVIDENCE
B. P. O’MARRA, j.
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] At both trials, Christopher Husbands admitted that he fired the shots but submitted he was not criminally responsible as he was in a dissociative state during the shooting. He further testified at the first trial that he came to be in possession of the handgun he fired that day because a man he knew as “Gaza” had given it to him to hold on to the night before.
[3] Four days before the shooting at the Eaton Centre, on the evening of May 28, 2012, there was a shooting incident in the Regent Park area of Toronto. The police later recovered items at the scene, including five shell casings. Forensic examination later determined that those five casings came from the same gun used at the Eaton Centre shooting. The police also recovered other items that contained the DNA and a fingerprint of a man named Marcus Gibson.
[4] On March 20, 2013, Marcus Gibson was arrested and charged with various firearm charges related to the shooting incident in Regent Park on May 28, 2012. At a preliminary hearing on August 21, 2014, Marcus Gibson was discharged on all of those charges. On November 27, 2016 he was murdered.
[5] On a pretrial motion in this matter, the Crown sought a ruling related to the following:
(1) Circumstantial evidence linking Marcus Gibson to the shooting in Regent Park;
(2) Forensic evidence linking the shell casings from the Regent Park shooting to the gun fired by Christopher Husbands on June 2, 2012 in the Eaton Centre; and
(3) Circumstantial evidence that after his arrest on June 2, 2012, Christopher Husbands indicated an interest in and some knowledge of the firearm charges against Marcus Gibson.
[6] Based on the combination of this evidence, the Crown seeks to challenge the evidence of Christopher Husbands that, the night before the shooting, he took possession of the handgun from a man named Gaza.. The Crown would suggest that, in fact, he obtained the handgun from Marcus Gibson at an earlier time.
[7] On October 19, 2018, I dismissed the application by the Crown. The trial has now been completed. These are my reasons.
POSITIONS OF THE PARTIES
[8] The Crown sought to use evidence (outlined below) to challenge the testimony of Christopher Husbands that he took possession of the gun from Gaza the night before the Eaton Centre shooting. The Crown would suggest that he in fact received the gun from Marcus Gibson much earlier. The Crown submits that two letters written by Christopher Husbands to Roxanne Charles could connect him to Marcus Gibson. The Crown specifically would not suggest that Christopher Husbands was the shooter in the Regent Park incident or that he was present at it.
[9] The defence would admit that the firearm used by Christopher Husbands in the Eaton Centre was in Regent Park four days prior. This admission from the first trial would be accompanied by a Crown admission that firearms often change hands. The defence submitted that the proffered evidence from the Crown would not properly or fairly permit an inference to contradict the “Gaza” narrative. The inference sought by the Crown was speculative. There was lurking prejudice that the jury might assume that Christopher Husbands had some knowledge of the Regent Park shooting before the events at the Eaton Centre on June 2, 2012.
EVIDENCE ON THE APPLICATION
[10] The parties agreed to proceed on the basis of materials filed without viva voce evidence.
Information about the Regent Park Shooting
[11] The Crown filed a document identified as “Facts Crown Seeks to Lead”. From that document, the Crown relied on items #1-6 inclusive and #8 as amended. They are as follows:
On May 28, 2012, police received 911 calls at approximately 6:18 p.m. for shots being fired in the area of Dundas Street East and River Street in the Regent Park area of Toronto.
Police arrived on scene and commenced an investigation. At the scene, they located five (5) shell casings. The gun that fired these shots was not located at the scene.
These casings were submitted to the Centre of Forensic Sciences for examination. They were compared to the casings located at the Eaton Centre on June 2, 2012. It was determined that these casings came from the same gun that was used at the Eaton Centre shooting.
Police also located, in close proximity to the casings, a white bandana and plastic juice bottle. These items were submitted to the Centre of Forensic Sciences for testing.
Subsequent DNA testing was done. Both the bandana and the juice bottle contained the DNA of Marcus Gibson. His fingerprint was also found on the juice bottle.
Marcus Gibson was arrested on March 20, 2013 for the May 28, 2012 incident. He was charged with offences related to the discharge of the firearm [Discharge firearm endanger life; Unauthorized possession of a firearm; Careless use of a firearm; Carry concealed weapon; Pointing a firearm; Weapons dangerous].
Mr. Gibson had a preliminary inquiry on his charges on August 21, 2014. An Agreed Statement of Facts was filed and no witnesses were called. At the conclusion of the preliminary inquiry Mr. Gibson was discharged. On November 27, 2016 Mr. Gibson died.
Testimony of Christopher Husbands at the First Trial as to How He Came Into Possession of the Handgun He Fired on June 2, 2012 in the Eaton Centre
[12] At the first trial in 2014, Christopher Husbands testified that on the night before the Eaton Centre shooting, he met with a group of men including one referred to as Gaza. They planned to purchase some street drugs. Later that night, Gaza asked him to hold on to a handgun for him and said that he would pick it up the next day. Christopher Husbands agreed to do so.
[13] About two or three weeks before he testified at his first trial, Christopher Husbands asked a friend to do research on the internet to find out who Gaza was in order to accurately identify him at trial. He discovered that Gaza was dead.
[14] At the first trial, Christopher Husbands was shown a photo of a person he identified as Gaza. He said that he later learned that Gaza’s last name was Earl but he did not know his first name.
Letter dated May 24, 2013 from Christopher Husbands to Roxanne Charles
[15] In a letter written by Christopher Husbands while he was in custody related to the shootings at the Eaton Centre, he wrote the following:
Ask Bamz what charge is Marcus on. I know why he’s in but what’s his charge? Don’t forget.
[16] At the first trial, Roxanne Charles identified a photo of a man she knew as “bam bam” or “bams bams”. The name of that person is Cameron Landry. Roxanne Charles testified that she understood that Christopher Husbands knew “bam”.
Undated Follow-up Letter to Roxanne Charles
[17] A further letter written by Christopher Husbands sometime after May 24, 2013 includes the following:
Thanks for checking that thing with Bamz.
[18] Roxanne Charles was not asked at the first trial whether she was aware of any relationship between Christopher Husbands and Marcus Gibson. The Crown proposed to ask her at the retrial whether she knew of any connection between them. The Crown did not know what her answer would be. Apparently, she was to be interviewed on October 18, 2019. I received no further information on this before my ruling on October 19, 2019.
Further Items Seized by Police at the Scene of the Regent Park Shooting
[19] The police also recovered the following items that were not connected to the gun fired by Christopher Husbands on June 2, 2012 at the Eaton Centre:
(1) One nine millimeter shell casing; and
(2) A Ruger firearm found in a nearby garbage bin. This gun had ten rounds of nine millimeter ammunition in the magazine and one shell casing jammed in the ejector port where the bullet had been discharged but the casing did not eject.
ANALYSIS
[20] The Crown is not required to prove individual pieces of evidence beyond a reasonable doubt: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354-355, 357.
[21] The process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess: USA v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7.
[22] Based on the available evidence, there are significant speculative gaps in the suggested link of Marcus Gibson to the Regent Park shooting and the link of Marcus Gibson to Christopher Husbands. There was no follow up by the Crown on this application as to whether Roxanne Charles knew of any connection between Marcus Gibson and Christopher Husbands.
[23] Marcus Gibson’s DNA was found on a bandana and a juice bottle in Regent Park. His fingerprint was also found on the juice bottle. There is no way to determine when he had contact with those unremarkable items in a public area. They cannot link him to the date and time of the shooting in Regent Park.
[24] Firearms, specifically handguns, are readily transferable and are often handed off to others. Christopher Husbands testified that he has held guns for others in the past and that he was given one the night before the Eaton Centre shooting. The purported link of Marcus Gibson to this gun and also to Christopher Husbands is very speculative. If the jury were to receive this evidence they would also learn that Marcus Gibson was discharged at a preliminary hearing of all firearm charges related to the Regent Park shooting. He was then, and he remained, presumed innocent of all such charges.
[25] The credibility of Christopher Husbands is a critical issue on this trial. The circumstances of how he came to possess the gun he fired at the Eaton Centre are very important. However, the Crown seeks to challenge his testimony on this critical issue based on tenuous circumstantial evidence and speculation. I am not satisfied that it would be fair or reasonable to do so.
[26] In the result, the application is dismissed.
B. P. O’Marra, J.
Released: May 14, 2019
COURT FILE NO.: CR-17-10000604-0000
DATE: 20190514
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER HUSBANDS
Applicant
RULING ON THE ADMISSIBILITY OF EVIDENCE
B. P. O’MARRA, J.
Released: May 14, 2019