Court File and Parties
COURT FILE NO.: CR-17-10000604-0000 DATE: 2019-05-10 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: February 17, 2019
RULING ON A RESPONSE TO A QUESTION FROM THE JURY DURING DELIBERATIONS
B. P. O’MARRA, j.
OVERVIEW
[1] On June 2, 2012, Christopher Husbands fired 14 shots from a handgun in the crowded food court of the Toronto Eaton Centre. He killed two men and wounded five others. He faced two counts of second degree murder, five counts of aggravated assault and other firearm related counts. The defence sought verdicts of Not Criminally Responsible on account of Mental Disorder (NCRMD) on the basis that he was in a dissociative state related to Post-Traumatic Stress Disorder (PTSD) when he fired all of the shots. The Crown’s position was that Christopher Husbands fired all of the shots toward the two deceased with the intention for murder based on revenge related to a prior incident. Neither party ever suggested, or introduced any evidence to prove, that the accused may have been in a dissociative state for some but not all of the shots.
[2] Nevertheless, on the fourth day of jury deliberations, I received the following written question from the jury: “ If we find Christopher Husbands was able to appreciate the nature and quality of one or more of the shots but not all, should we find him NCR?”
[3] After extensive discussion and submissions from counsel I read the following response to the question posed by the jury:
Christopher Husbands has testified that he did not voluntarily or intentionally fire any of the shots at the Eaton Centre.
If you find that he was able to appreciate the nature and quality of one or more of the shots but not all, you must consider this with all of the rest of the evidence as to whether he was in a dissociative state when he fired the shots that caused the two deaths and the injuries in this case. The onus on this issue is on the defence on a balance of probabilities.
If you have questions arising from my response to this or any other questions, please feel free to put them in writing, forward them, and I will get back to you with a response, after I have discussed it with counsel, as soon as I can. But, by all means, if you have follow-up questions or wish clarification in regard to this or anything else that I have said, feel free to put that to me in writing and I will definitely get back to you.
[4] This response, as I shall explain, sought to focus the jury on the evidentiary record in this case, and remind the jury that, in order to conclude that the accused was not criminally responsible for the alleged offences, they had to be satisfied, on a balance of probabilities, that the accused was in a dissociative state at the time that he fired the shots that formed the basis of the charges – namely, when he “fired the shots that caused the two deaths and the injuries in this case.”
[5] There were no further questions from the jury. On the sixth day of deliberations, the jury returned its verdict, finding the accused guilty of two counts of manslaughter, guilty of five counts of aggravated assault, and guilty of further counts related to discharging a firearm in a public place.
[6] I will now explain, in greater detail, the reasons for my response to the question posed by the jury.
[7] The positions of the Crown and the defence, throughout this trial – from start to finish – based primarily upon the expert medical evidence and the testimony of the accused himself, was that Christopher Husbands was either criminally responsible or not criminally responsible when he fired all the shots and caused both deaths and all of the injuries. Neither the Crown nor defence counsel posed any questions to any witness even suggesting that Christopher Husbands may have been in a dissociative state and not criminally responsible for some but not all the shots that he fired. Given the complete absence of any evidence in support of such a scenario, it was not surprising that neither the Crown nor the defence made any mention of such a scenario in their respective closing addresses to the jury. My charge to the jury similarly made no mention of any such scenario. Predictably, neither party thereafter suggested that the charge to the jury should have addressed this scenario.
[8] On the two counts of second degree murder, counsel agreed at the pre-charge conference that the available verdicts on each count were (1) not criminally responsible on account of mental disorder; (2) guilty of second degree murder; or (3) not guilty of second degree murder but guilty of the included offence of manslaughter. Counsel agreed that an outright acquittal on those two counts of murder was not a properly available verdict on the evidence.
[9] During our discussions about how the question posed by the jury should be answered, the parties agreed that, based on the evidence and their submissions during the trial, the evidence did not admit of any basis upon which the jury might reasonably be able to finely parse the various shots fired by the accused into (1) shots fired intentionally by the accused; and (2) shots fired by the accused while in a dissociative state for which he was “not criminally responsible.”
[10] Nevertheless, defence counsel argued that the jury should be told, in response to its question: “If you find Christopher Husbands was dissociating during the material parts of the shooting, he should be found not criminally responsible.”
[11] As I have indicated, the defence position throughout the trial based on the evidence (including admissions of causation) was that Christopher Husbands was in a dissociative state and NCR for all of the shots that he fired. The onus was, accordingly, effectively on the defence to prove, on a balance of probabilities, that the accused was NCR when he fired all of the shots. If the jury were not so satisfied, then they were obliged to consider whether the various alleged offences had been proven by the Crown beyond a reasonable doubt.
[12] It is difficult to imagine how the jury might reasonably conclude, based upon the evidence and the positions advanced by the respective parties, that the defence had established, on a balance of probabilities, that the accused was in a dissociative state when he fired one or more of the shots, but had failed to establish, on a balance of probabilities, that the accused was not in a dissociative state when he fired the remainder of the shots. As I have indicated, there is simply no evidence that might permit them to reasonably dissect and parse the shots fired by the accused in this way.
[13] Moreover, it would have been wrong to instruct the jury that they should find the accused not criminally responsible for all of the shots that he fired, if they were only satisfied, on a balance of probabilities that he was not criminally responsible when he fired one or more of the shots.
[14] In the result, based on these considerations, and in all of the circumstances of this case, I determined that, in answer to their question, the jury should be reminded of the evidentiary record in this case, and the onus of proof with respect to the defence of “not criminally responsible on account of mental disorder” defence. However, to the extent that the jury was considering what to make of the theoretical possibility of concluding that the accused was only in a dissociative state for one or more (but not all) of the shots that he fired, I considered it appropriate to focus their attention, in their consideration of the potential application of this defence, on the material shots fired – the shots that formed the basis of the various counts of the indictment. Accordingly, I effectively instructed the jury that if they somehow concluded that the accused was in a dissociative state at the time he fired some but not all of the shots, they were obliged to determine whether the defence had established, on a balance of probabilities, that accused “ was in a dissociative state when he fired the shots that caused the two deaths and the injuries in this case .”
[15] I observe in passing that the question from the jury suggested that they did not accept the evidence of Christopher Husbands that he did not voluntarily and intentionally fire any of the shots. Needless to say, the credibility of Christopher Husbands was a very important factor for the jury to consider in regard to the viability of the NCR defence. Of course, on this NCR issue, the credibility of the accused is not considered and assessed on whether it might raise a reasonable doubt, as provided by the three-pronged standard articulated in R. v. W. (D.), [1991] 1 S.C.R. 742. The onus is on the accused to establish, on a balance of probabilities, based on all of the evidence that he was not criminally responsible at the time of his commission of the alleged offences.