ONTARIO

SUPERIOR COURT OF JUSTICE

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

DATE: 20191129

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER HUSBANDS

Defendant

M. Humphrey, J. Cisorio and A. Serban, for the Crown

D. Derstine and S. DiGiuseppe, for the Defendant

HEARD: June 27, 28, July 8, August 6-9, September 23-25, 30, October 1, 2, 29, 30 and November 6, 2019

REASONS FOR SENTENCE

B. P. O’MARRA J.

Overview

[1] On June 2, 2012, at approximately 6:22 p.m. Christopher Husbands opened fire with a loaded handgun in the crowded food court of the Eaton Centre in the heart of Toronto.

[2] He killed two men and injured six other people by his actions.

[3] The two deceased men were friends. Nixon Nirmalendran and Ahmed Hassan grew up together in Regent Park. They were known to Christopher Husbands. They went to the food court that day with their friends Robert Cada and Ahmed Nuri. Nixon Nirmalendran’s younger brother Nisan Nirmalendran also attended. Robert Cada had just been released from jail. They decided to go to the Eaton Centre food court to get something to eat and talk to girls. All these young men were in their early twenties. Nixon and Nisan were among a group of men who had attacked, confined, threatened and stabbed Christopher Husbands some four months prior.

[4] The same day, Christopher Husbands went to the Eaton Centre with his then girlfriend LaChelle John. He wanted to buy himself some rollerblades. His girlfriend was going to pick up some ice skates that she had put on hold for her son the day before.

[5] When they arrived at the Eaton Centre, Christopher Husbands was carrying a black satchel that was draped across his body. In that satchel, he was carrying a fully loaded handgun. Both the black satchel and later the handgun are clearly visible in the video footage from the Eaton Centre.

[6] After spending approximately one hour in the SportChek, Christopher Husbands and LaChelle John stopped by the Big Smoke Burger restaurant to pick up hamburgers for Ms. John’s mother and for Christopher Husbands. They were there for approximately 13 minutes, and then they made their way north to the Sushi Q restaurant.

[7] Christopher Husbands was standing in the corner near the Sushi Q restaurant while LaChelle John was purchasing her food. His black satchel was draped across the right side of his body. He was standing with his back to the corner, looking out to the food court. The five men, (the two deceased men and their friends), entered the Eaton Centre. They made their way down to the food court by the escalator.

[8] They walked past Christopher Husbands.

[9] No argument was heard by anybody in the food court.

[10] LaChelle John, who was just a few feet away, heard Christopher Husbands yell “What”.

[11] Robert Cada saw a “fishy person” standing in the corner and then he heard him yell “What’s up” in a rude manner.

[12] After the five men walked forward past Christopher Husbands, he pulled out his gun and fired towards Nixon Nirmalendran and Nisan Nirmalendran. Nisan Nirmalendran ran in a southerly direction up the south escalators leaving the Eaton Centre. Robert Cada ran in a southerly direction and into the SportChek. He exited the Eaton Centre through the SportChek inventory room. Ahmed Nuri is seen running south and turning west into the central seating area of the food court. He is later seen going up the south escalators.

[13] Christopher Husbands fired 14 rounds from his gun.

[14] The video footages shows him firing in the direction of Nixon Nirmalendran and Nisan Nirmalendran.

[15] When Christopher Husbands stopped firing after emptying his magazine, Ahmed Hassan lay dead on the ground. He was 24 years of age.

[16] Nixon Nirmalendran was critically injured. He was rushed to St. Michael’s Hospital. He died 9 days later on June 11, 2012 from complications from gunshot wounds. He was 22-years-old.

[17] Innocent bystanders were also harmed by the bullets that may have travelled through several different bodies or ricocheted off floors, walls or pillars.

Victims

Connor Stevenson, a 13-year-old boy, was shot in the head

[18] He was in the food court with his mother, Joanne Finney and his sister, Taylor Stevenson. They went to the Eaton Centre to get something to eat before they drove home. After they sat down at the table to eat their dinner, they heard gunshots. They got down on the ground. They were hunched under the table close to a pillar.

[19] They moved behind the pillar and realized Connor had been shot. Connor lost consciousness. EMS arrived shortly and provided medical assistance. Connor Stevenson was put on a stretcher and taken to the Hospital for Sick Children emergency department.

Tasnuva Mahmood was shot in the leg

[20] Tasnuva Mahmood went to the Eaton Centre with a friend who was visiting from Boston. They were there to visit the new food court. As Ms. Mahmood and her friend were walking through the food court they heard gunshots. Tasnuva was shot in her right leg just above the knee.

Nicholas Kalakonis was also shot in his upper thigh

[21] Nicholas Kalakonis went to the Eaton Centre with a friend to enjoy the day and do some window shopping. Mr. Kalakonis and his friend went to the food court. As they were walking through the food court Mr. Kalakonis heard gunshots and saw someone being shot. Mr. Kalakonis and his friend then turned and ran. He was shot in the leg. He dove to the ground to take cover.

A bullet hit Hanna Kim’s finger

[22] Hanna Kim, along with several friends, attended the food court. While waiting in line, Ms. Kim heard the sounds of gunshots. Ms. Kim went to the ground after the shots started. While she was on the ground, Ms. Kim felt something really hot on her right little finger. Her finger was cut and bleeding.

A bullet grazed Qin Chen’s stomach

[23] Qin Chen went to the Eaton Centre to shop and then she decided to purchase her meal. Ms. Chen was in the process of paying the cashier for her meal when she suddenly heard gunshots. At this point she felt a burning pain to her left abdomen area and on the left side of her left foot. She observed a bullet grazing injury to her abdomen.

Kessia Frederick, who was pregnant at the time, was trampled by the panicked crowd as they tried to exit the food court up the south escalator

[24] After hearing gunshots, hundreds of people ran for their lives. The video footage shows people scrambling to exit the food court, leaving behind recent purchases, such as hot meals and baby carriages.

[25] Kessia Frederick went to the Eaton Centre with her 8-year-old son and 17-year-old niece. Ms. Frederick was 7 months pregnant at the time. After some shopping the three of them went to the food court to get something to eat at the south end. While in line gunshots went off and people panicked and began to run. Ms. Frederick tried to get to her son and niece. She was pushed to the ground by the fleeing crowd. Ms. Frederick injured her wrist, injured her shoulder, pulled leg muscles and began to feel contractions.

The Police Investigation

[26] Dozens of 911 calls were made about the shooting. There was a city-wide police response.

[27] Police units, Emergency Medical Services, Eaton Centre Security, and Firefighters responded to the shooting call at the Eaton Centre.

[28] Hundreds of witnesses were interviewed after the shooting.

[29] The police identified Christopher Husbands as the shooter after looking at the video.

[30] The police located his last known address at his brother’s residence. They placed that address under surveillance, but they did not see him.

[31] After the shooting, before information was released to the public about the name of the suspect, Christopher Husbands turned himself into the police with his lawyer. On June 4, 2012 at 2:25 a.m. he walked into a police station and was arrested. He has been in custody since that day. After the shooting and before his arrest Christopher Husbands disposed of the handgun used in the shooting near the lakefront in Toronto. Despite significant efforts by members of the Toronto Police Service it was never recovered.

Nisan

[32] Nisan Nirmalendran, the younger brother of the deceased Nixon, was shot and killed on March 21, 2013, in an unrelated incident.

Post Mortem Examinations

[33] Dr. Pollanen, forensic pathologist, conducted the post mortem examinations of both deceased victims. Ahmed Hassan died from a penetrating gunshot wound of the torso. The bullet entered his abdomen on the left side of the body.

[34] Ahmed Hassan had three other injuries.

• A graze gunshot wound of the left upper back.

• A perforating gunshot wound of the torso, a through and through wound, the entry wound is present on the lower back region and the bullet exited out the front of the body.

• A perforating gunshot wound of the buttock and hip. The bullet travels from back to front and exited the body.

[35] Nixon Nirmalendran died from complications of multiple gunshot wounds. He had eight different gunshot wounds that were caused by eight different bullets. They included:

• Penetrating gunshot wounds of the neck and the right arm where a bullet was found and removed.

• Two perforating superficial wounds of the left chest.

• Perforating gunshot wounds of the left upper arm, the right hand; the buttock with the bullet re-entering another part of the buttock; and right elbow.

[36] There were five additional gunshot wounds that could not be definitively reconstructed because of the medical interventions to try to save his life. These wounds represent a number of gunshot wounds with overlapping wound paths.

Letters from Jail

[37] After he was arrested, Christopher Husbands rekindled a relationship with a former girlfriend Roxanne Charles. She met him through the deceased Nixon Nirmalendran. Christopher Husbands sent her over 27 letters from jail and she went to visit him.

[38] In a letter dated August 20, 2012, that starts “HEY GORGEOUS”, these are the following excerpts:

“I am in jail because these bitch ass niggas wanted to kill me over the most stupid thing that they made up more excuses to justify their shit.”

“I told these fucking goofs that this shit would lead to no good.”

“I am being prosecuted in court because of these brainless goofs that calls themselves gangsters. I didn’t even want to do anything beside open their eyes and show them the light.” (p. 1-2)

“Trust me, if I get convicted and I see any of those guys here best believe that I’ll punish them for fucking my life up. Like I tried to tell them before, stabbing me was soft.” (p. 3)

“And if that is the case they better hope I don’t get convicted because it’s on when I see them in here. They better be willing to kill me without their big crowds the same way when they’re by themselves.” (p. 3)

[39] On the last page of another letter he refers to RBK (Robert Cada). At the end of the paragraph he states “If I have to go down. Trust me when I get out none of these guys or their family will want to be around.”

Christopher Husbands’ Comments on Gun Laws in Canada

[40] Ashley Stanger worked with Christopher Husbands at the Stan Wadlow Clubhouse. She also socialized with him. On February 28, 2012 Christopher Husbands was attacked, confined, threatened and stabbed by a group of men. They included Nixon and Nisan. After that incident and before the shooting at the Eaton Centre Christopher Husbands told her that gun laws should be changed so that people could carry guns to protect themselves.

Brief History of Proceedings

[41] The original charges included two counts of first degree murder, five counts of aggravated assault, one count of causing bodily harm by criminal negligence and one count of intentionally discharging a firearm while being reckless as to the life or safety of another person.

[42] On December 17, 2014 Christopher Husbands was found guilty of two counts of second degree murder and the remaining counts. On appeal in 2017 a new trial was ordered. Pretrial motions on this trial began in September 2018. On February 19, 2019 Christopher Husbands was found guilty of two counts of manslaughter and all of the remaining counts.

[43] There were several contentious issues related to sentence that required the filings of a substantial volume of materials. Christopher Husbands and several officials from the various jails where he has been incarcerated testified to the length and conditions of his detention, including a protracted time in segregation. The defence called two expert witnesses as well as another witness who provided a detailed review of Christopher Husbands’ personal history. Victims and family members testified and filed statements as to the impact of these crimes. A series of medical reports related to Connor Stevenson were filed. A community victim impact statement was read in and filed.

[44] Not surprisingly, the Crown and defence were far apart in their submissions as to what the global sentence should be in this case. They have all been very helpful to me throughout. I needed some time after the evidence and submissions on sentence were completed to consider it all and arrive at a final conclusion.

[45] I have provided this brief chronology to explain why it has taken so long, specifically the time from the verdicts on February 19, 2019 until today. I know that Christopher Husbands, who has been in custody for some 7.5 years, as well as the victims of these crimes and their families have a keen and valid interest in seeing some finality to this process.

[46] These are my Reasons.

Statutory Framework

[47] The following sections of the Criminal Code of Canada, R.S.C. 1985, c C-46 apply to this sentencing:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and,

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstance, including their health and financial situation,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh;

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Victim impact statement

722(1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

Consideration of statement

(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.

Evidence concerning victim admissible

(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.

Community impact statement

722.2(1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.

Manslaughter

236 Every person who commits manslaughter is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Aggravated assault

268(1) Every one commits an aggravated assault who wounds, maims, disfigures, or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Causing bodily harm by criminal negligence

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Discharging firearm with intent

244(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or prevent the arrest or detention of any person – whether or not that person is the one at whom the firearm is discharged.

Punishment

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years; and

(b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.

Power of court to delay parole

743.6(1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

Principles that are to guide the court

(2) For greater certainty, the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles

Positions of Counsel

[48] The Crown seeks a life sentence on the two manslaughter counts and the maximum sentences on the remaining counts to run concurrently. In the alternative the Crown seeks a global sentence of 25 years less credit for time served.

[49] The defence seeks a global sentence of 12 - 15 years less credit for time served under three distinct headings that I will refer to later in these Reasons.

Route to Liability for Manslaughter - Moral Blameworthiness

[50] Juries in criminal cases return general verdicts. They do not give reasons or explain why they came to certain conclusions. Where murder is charged and manslaughter is the result there are a myriad of potential routes to explain that outcome.

[51] At its most basic level manslaughter is the causing of death by an unlawful act without the intent required for murder. A wide range of criminal activity and moral blameworthiness may support a conviction for manslaughter. In some cases the unlawful act causing death and the surrounding circumstances are at the lower end of the spectrum. In cases at this lower end it is often clear from the outset that the intent required for murder cannot be proven beyond a reasonable doubt. In those cases the original charge laid is often manslaughter. In other cases the charge laid is murder that is subsequently reduced to manslaughter either by a verdict or by a resolution of the matter between the Crown and defence.

[52] From the outset of this trial and in his evidence Christopher Husbands admitted that he fired the shots in the Eaton Centre that caused the two deaths and the injuries to the victims named on the indictment. The defence sought a verdict of Not Criminally Responsible (NCR) based significantly on the evidence of forensic psychiatrists that he was in a dissociative state when the shots were fired. The Crown called expert evidence in reply on this issue. The jury was instructed that on the issue of NCR the onus rested with the defence. By their verdicts the jury did not find that the NCR defence had been made out.

[53] Counsel made submissions at the outset of this sentencing hearing related to the route to liability on the two manslaughter counts. This important issue would frame the evidence and submissions to follow. My ruling was as follows:

a. Christopher Husbands was not in a dissociative state when he fired the shots.

b. The Crown had not proven the intent required for murder beyond a reasonable doubt.

c. While five total strangers to Christopher Husbands were struck by bullets, the act of shooting by Christopher Husbands was not random. He fired bullets toward a group of men who included two who were among a group who had seriously attacked and stabbed him some four months earlier.

d. The forensic psychiatric experts for both parties agreed that Christopher Husbands suffered from Post-Traumatic Stress Disorder (PTSD) on the day of the shooting based on the attack he sustained some four months earlier.

e. There was a ruling at the first trial that there was no air of reality to self defence as it is defined in the Criminal Code. That ruling was maintained through the second trial. There was evidence, however, that Christopher Husbands had reason to fear those who had attacked him four months earlier.

f. The issue of provocation was left with the jury. It is a partial defence. It does not lead to an acquittal. Reference to provocation, and instruction to the jury on this, only became an issue after a jury has been satisfied beyond a reasonable doubt that the person charged had the necessary intent for murder. Where provocation has the effect of reducing murder to manslaughter that does not mean that provocation has been made out or proven. That is not the onus on the defence. Provocation reducing murder to manslaughter is premised on a reasonable doubt as to the intent for murder based on provocation.

g. Based on the evidence at trial, including video footage of the moments before, during and after the shots were fired, the evidence of provocation in this case was underwhelming. Christopher Husbands claimed that before he drew his gun and fired he heard one of the group of men say “shoot him” and that another appeared to reach for a gun. Christopher Husbands was the only source of that information. It is not reflected in the evidence of other persons in the food court at the time, or on the videos.

h. Notwithstanding the marginal evidence of provocation it was still properly put to the jury for consideration.

i. The instructions to the jury included a rolled-up charge relating the potential cumulative effect of several categories of evidence, including the following:

• Evidence related to symptoms of PTSD including hyper-vigilance, increased startle response and paranoia.

• Christopher Husbands’ fear upon seeing two of the men who had stabbed him four months earlier in circumstances where he did not expect to.

• Any words uttered by either Nixon or Nisan in the moments before the shooting and their effect on Christopher Husbands’ fear and emotional reaction.

• Any evidence from the forensic experts related to automatic and involuntary biological responses to stress, including the effect of “fight or flight” reaction on Christopher Husbands.

• How Christopher Husbands appeared as shown on the video and described by witnesses in the food court just before, during and after the shooting.

• The circumstances and reasons presented by Christopher Husbands in his testimony and interviews with the forensic experts as to his possession of a loaded, concealed handgun when he went to the Eaton Centre and then into the food court.

• The speed at which events unfolded and the effect that may have had on Christopher Husbands’ ability to think through his actions, as opposed to reacting instinctively to unfolding events.

• Whether the speed of events affected Christopher Husbands’ ability to form the intent for murder, bearing in mind that a person can form the intent to kill very quickly.

• Any portion of the evidence of Christopher Husbands related to his mental state just before and during the shooting that raises a reasonable doubt as to whether he had the intention for murder.

• The cumulative effect of this evidence, along with any other evidence that tends to show Christopher Husbands’ state of mind when considering whether the intent for murder has been proven beyond a reasonable doubt.

[54] In light of all the evidence at trial, the legal instructions to the jury and their verdicts the specific intent for murder was not proven beyond a reasonable doubt. There was no evidence that Christopher Husbands had any expectation of seeing any of the men there who had attacked him four months earlier. There was also no evidence that he intended to commit any offences by use of the handgun when he went to the Eaton Centre and then down to the food court. He appeared to be surprised at seeing two of the men who had earlier attacked him.

[55] There was some evidence of an element of fear on the part of Christopher Husbands when he saw the two men. That was not unreasonable bearing in mind what had happened to him four months earlier. However, that element of fear falls far short of the legal standard to consider lawful self defence. This was not a case of self defence.

[56] There was evidence of, and a rational reason for, Christopher Husbands to be angry at the people who had attacked him. Motive is not an essential element that the Crown must prove for either murder or manslaughter. At the very least Christopher Husbands had a reason to deeply resent those who had injured him so severely on an earlier date. It would not be unreasonable to find that he would wish to inflict harm on them. That is not the same thing as saying that he had an intent to kill them. A finding that he would have a motive to resent and inflict harm on those persons is not incompatible with the verdicts of manslaughter in this case.

[57] The route to manslaughter in this case is important on the issue of moral blameworthiness. Some cases of manslaughter involve relatively low end unlawful acts that fall far short of intent to kill. Despite the loss of life those cases involve relatively low levels of moral blameworthiness. Unlawful deaths caused by the use of firearms carry a significantly higher level of moral blameworthiness. In those cases, as in this one, the potential verdict of murder is virtually always in play. The exception would be those cases where the defence claims an accidental discharge of a firearm. That was not an issue in this trial.

[58] Parliament has codified the elevated seriousness of manslaughter involving the use of a firearm. Where no firearm is involved the maximum penalty is life in prison with no minimum penalty. Where a firearm is involved there is a minimum punishment of four years in prison and a maximum of life. Criminal Code s. 236(a).

[59] The high level of moral blameworthiness in this case includes the serious aggravating factor that Christopher Husbands brought a loaded and concealed handgun into a crowded public place. He testified that he had no intention of committing a crime by that firearm when he possessed it that day. There is no evidence that he had any such intention. He testified that he was asked to hold onto the handgun the previous evening by a man he knew who was subsequently killed in an unrelated incident. Christopher Husbands testified that he had held onto other illegal firearms in the past at the request of people in his neighborhood.

[60] While there was no evidence that Christopher Husbands intended to use the handgun to commit a crime before he entered the Eaton Centre there is another layer to consider on this issue. After Christopher Husbands had been attacked four months earlier and before the shooting at the Eaton Centre he told a co-worker his views about gun laws in Canada. They both testified that Christopher Husbands told her that he believed people should be allowed to carry firearms for self protection: based on that evidence I find that he felt justified in carrying a loaded firearm in public. He knew it was illegal to do so. On the day of the shooting he was also on bail with terms that included he was not to possess or carry firearms or ammunition, Christopher Husbands made a conscious decision, a choice to carry the loaded, concealed firearm into the Eaton Centre that fateful day. There was no suggestion in the extensive forensic psychiatric evidence at trial or on sentence that his PTSD or any other mental disorder impaired his knowledge and choice to carry a loaded handgun into that public place.

Personal History of Christopher Husbands

[61] Christopher Husbands was born February 24, 1989 in Guyana. He was 23-years-old at the time of the Eaton Centre shooting. He came to Canada in December 2000. He has two older siblings, Marlon and Natoya and a younger sister Neola. He also has half brothers and sisters. His parents separated while he was in Guyana. His father moved to Canada. Christopher Husbands stayed with his mother. She developed a serious drug addiction to crack cocaine and became HIV positive. She now has AIDS. Christopher Husbands witnessed acts of violence related to his mother’s lifestyle. He and his siblings eventually went to live with their grandmother in Guyana.

[62] His sister Natoya came to Canada in 1996. His sister Neola came 18 months later and Christopher Husbands came after that. They lived with their father in Regent Park. Their father remarried and had more children.

[63] Christopher Husbands testified that he never experienced racism in Guyana. In Regent Park he faced racial taunts, even from other black students. He heard about and saw violent incidents, including stabbings and shootings. There was lots of drug activity and a significant police presence in the area. Many people in his community did not have a positive relationship with the police.

[64] With the assistance of a teacher in elementary school he attended a high school outside of Regent Park. He was enrolled in the Pathways Program that included help in getting bus fare to and from school. He experienced some bullying based in part on the clothes he wore.

[65] Christopher Husbands started using marijuana as he entered high school. He was expelled from high school as a result of a fight. He completed grade 10 at another school. He then went to another high school in Scarborough. He lived with his older sister there until she could no longer afford it. He then went to another school for grade 11 and rejoined Pathways. He left that school and attended an adult learning centre. He did not complete that course. He testified he dropped out to assist his girlfriend who was pregnant with their child. He eventually was admitted to George Brown College as a mature student. He was there for some two months studying business administration.

[66] Starting in high school Christopher Husbands worked summers as a volunteer and for some modest payment in programs for younger children. In the fall of 2011 he worked at Stan Wadlow Clubhouse. That involved working with younger children after school hours.

[67] Christopher Husbands testified that he had an off and on relationship with the mother of his child. He tried to assist with financial support as he was able. The relationship with his girlfriend deteriorated. At the first trial in 2014 she testified that Christopher Husbands may not be the father of her child. He still believes he is the father. Christopher Husbands was charged with sexual assault against his former girlfriend before the events of June 2, 2012. On October 23, 2012 he was convicted of sexual assault and sentenced to 12 months in jail. He served that sentence while in custody awaiting trial on these charges.

[68] Christopher Husbands acknowledged that he began selling marijuana in high school and continued up to June 2, 2012. He also started dealing crack cocaine. He claimed he never used cocaine personally. He testified that selling drugs is a dangerous business but he never felt the need to have a gun “prior to my stabbing.”

[69] Christopher Husbands testified it was not uncommon to see people with guns in Regent Park. Sometimes older guys would ask younger ones to hold onto guns for them. Christopher Husbands held onto guns in this scenario. He would hide them. He would receive $20 or $50 to hold onto a gun.

[70] There was no dispute at trial that on February 28, 2012 Christopher Husbands was the victim of a protracted, serious assault by several young men. They included Nixon Nirmalendran and Nisan Nirmalendran. Christopher Husbands was confined, bound, threatened and stabbed. Christopher Husbands later told police that he did not know or recognize any of his attackers. That was not true, but he did not identify anyone out of concern for the “code of silence” in the neighbourhood. In his testimony at both trials Christopher Husbands said he still does not know why he was attacked on February 28, 2012.

[71] Christopher Husbands testified that he had known Nixon for years and they had a good relationship. He knew Nisan as Nixon’s younger brother. He was not aware of any bad blood between himself and Nixon or Nisan. Ahmed Hassan (who was killed on June 2, 2012 along with Nixon) was an acquaintance of Christopher Husbands.

[72] Christopher Husbands has the following criminal record as an adult:

2009-01-20

FAIL TO COMPLY UNDERTAKING

$300

2009-02-06 TORONTO ONT

(1) POSS OF A SCHEDULE II SUBSTANCE (MARIJUANA) SEC 4(5) CDS ACT

(2) FAIL TO COMPLY WITH CONDITIONS OF UNDERTAKING GIVEN BY OFFICER IN CHARGE

(1) $450

(2) $300

2009-06-01 TORONTO ONT

FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC

SUSP SENT & PROBATION 12 MOS

2010-09-24 TORONTO ONT

POSS OF A SCHEDULE I SUBSTANCE (COCAINE) SEC 4(3) CDS ACT

$400

2012-04-23 HAMILTON ONT

(1) OBSTRUCT POLICE OFFICER SEC 129(A) CC (2 CHGS)

(2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (2 CHGS)

(3) POSS OF A SCHEDULE II SUBSTANCE (MARIJUANA) SEC 4(1) CDS ACT

(1-2) 1 DAY & (4 MO) PRE-SENTENCE CUSTODY CONC

(3) $200

2012-10-23 TORONTO ON

(1) SEXUAL ASSAULT SEC 271 CC

12 MOS CUSTODY (17 DAYS PSC) & 2 YEARS PROBATION

[73] A further review of the personal history of Christopher Husbands specifically related to his experience as a young black male was completed by Camisha Sibblis in support of the Impact of Race and Culture Assessment (IRCA). I will refer to that later in these Reasons.

MITIGATING FACTORS

[74] Counsel for Christopher Husbands referred to the following as mitigating circumstances:

• Christopher Husbands was a young man, 23-years-old at the time of these offences.

• The difficult circumstances and challenges in his early life in Guyana and later when he lived in the Regent Park area of Toronto.

• The impact of Mr. Husbands’ race and culture. This will be addressed under a separate heading.

• He was a victim of crime at various times as a child and then in the events of February 28, 2012 when he was attacked, confined and stabbed. There is no doubt that Christopher Husbands was the victim of a very serious attack on February 28, 2012. However, consideration of that incident also must recognize that it would provide a motive for Christopher Husbands to deeply resent, if not wish to cause harm, to those who had outnumbered and attacked him.

• Despite the challenges he faced he engaged in pro-social activities in the years preceding the events of June 2, 2012.

• The offences were out of character. I agree that the specific acts of firing gunshots at other people was out of character in the sense there were no prior incidents of such. However, his prior character included drug trafficking, including crack cocaine, and holding onto illegal firearms for other people. In the context of the IRCA I will refer to some mitigation related to his prior criminal activity.

• The defence submits that the actions of Christopher Husbands in firing the shots were instinctual. This was a contentious issue at trial. It is related to the connection between his mental disorders and the acts in question. I will address this separately under the heading “Mental Disorder as a Mitigating Factor”.

• The rolled-up charge to the jury included reference to aspects of self defence and provocation. In a case where provocation may have reduced murder to manslaughter it may also be a mitigating factor on sentence. R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at paras. 234-237. In this case provocation was left with the jury based solely on the evidence of Christopher Husbands as to the following:

o Christopher Husbands claimed that he heard one of the group of men say “shoot him” before he fired any shots. No other witness, including his girlfriend LaChelle John says they heard this; and

o Christopher Husbands claimed one of the men appeared to reach for a gun near his belt. The various video images captured do not show this.

I have earlier referred to the evidence of provocation as “underwhelming”. Based on all of the evidence at trial I do not view provocation as a significant mitigating factor. Further, as set out in my review of the route to liability this was not a case of self defence and that is not a significant mitigating factor:

• Christopher Husbands turned himself into the police to be arrested and charged.

• From the outset of both trials Christopher Husbands admitted he was the shooter. The trials focused on the mental health issues which were the subject of conflicting expert testimony.

• There are positive prospects for rehabilitation. This topic will be addressed under a separate heading.

• There is evidence of remorse. This topic will be addressed under a separate heading.

IRCA

[75] The impact of race and culture on young Black males was considered and applied by Justice Nakatsuru in R. v. Jackson, 2018 ONSC 2527 and also in R. v. Morris, 2018 ONSC 5186. Both of those cases involved serious crimes of possession of illegal loaded firearms. Significantly neither involved the use of a firearm or deaths or injuries.

[76] In Jackson the accused pleaded guilty to possession of a prohibited firearm with one bullet in the chamber as well as breach of a weapons prohibition order. He was in fact subject to five such orders at the time of the offences. The court found that he was genuinely remorseful. The Crown sought a sentence of 8.5 - 10 years less credit for time served. The defence sought a term of 4 years less credit for time served. The court imposed a sentence of 6 years less time served.

[77] In Morris the accused was found guilty by a jury of possessing a concealed prohibited firearm and ammunition. He was a youthful first offender. The Crown sought a sentence of 4 - 4.5 years less credit for time served. The defence sought a sentence of 15 months less credit for time served. The court found that there were violations of the Charter that merited a remedy on sentence. The court imposed a sentence of 15 months less 3 months credit for time served as well as a remedy for breaches of the Charter.

[78] On both Jackson and Morris the defence tendered evidence related to how the criminal justice system treats African Canadians, including “the unfair and disproportionate jailing of Black offenders” (Morris at para. 7). In Jackson the defence filed an IRCA report without objection by the Crown. There was no cross-examination of the author of that report. In Morris the Crown objected to the admission of the report on the basis that it was not necessary since “the law has now long taken notice of these sorts of things. Experts are not required to consider them”. Justice Nakatsuru ruled the report was admissible.

[79] In R. v. Brissett and Francis, 2018 ONSC 4957 both accused were convicted of serious crimes related to living off the avails of juvenile prostitution. The Crown and defence were far apart on their sentencing positions. Both accused were black men who had immigrated to Canada from Jamaica. One accused had lived in poverty before coming to Canada. Both accused had stable and supportive family lives in Canada. Both accused submitted that the court should take judicial notice of the racism and discrimination Black Canadians have historically suffered as well as the effect of this discrimination on the offenders in crafting the appropriate sentences. They relied on the decision in Jackson. Justice LeMay declined to follow Jackson for the following reasons at paras. 57-71:

• Based on R. v. Hamilton (2004), 5549 (ONCA) the court is not permitted to take judicial notice of systemic racism and then automatically consider it in individual cases.

• Mitigation of sentence based on systemic racial bias requires specific information about the individual offender. None of that was available in this case.

• Systemic racism is only relevant on sentence to the extent that there is a connection between the systemic racism that an individual has experienced and the commission of the crime or their own personal circumstances. The connection must be direct.

• Even in the context of Aboriginal offenders some connection is required between the systemic and background factors and the offence, or the circumstances of the offender, before these systemic and/or background factors will affect the sentence. R. v. F.L., 2018 ONCA 83 at paras. 40-42, R. v. Ipeelee, 2012 SCC 13 at para. 83.

• Over emphasis on societal ills will result in an individual’s personal culpability being lost. The relevant factors in one person’s background will be case specific. A single factor will rarely be determinative. R. v. G.B. (2003), O.J. No. 3218 (ONSC) at para. 45.

[80] The IRCA of Dr. Marta-Marika Urbanik, supplemented by the thorough biographical review of Christopher Husbands prepared by Camisha Sibblis, provides relevant information at this sentencing stage. Christopher Husbands presents as a young black man, born into poverty, turmoil and violence in Guyana and then living in Regent Park. From his pre-teen years until his twenties he committed crimes of varying seriousness, including drug trafficking and holding onto illegal firearms for others. He also participated in pro-social activities, including volunteering and working at community organizations working with younger children. The court must consider the choices he made based in part on the environment he grew up in and over which he had little control. The subculture he grew up in limited the choices available to him.

[81] The issue of moral blameworthiness is an important factor in determining the appropriate sentence for these offences. A properly qualified and sourced IRCA, as in this case, acknowledges the existence of race and systemic racism in society. It is one factor to be assessed along with all the others in the sentencing process.

[82] In Ipeelee at para. 77 the court held that the statutory language of s. 718.2(e) is applicable to non-indigenous offenders:

Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders. Quite the opposite. Cory and Iacobucci JJ. specifically state, at para. 69, in Gladue, that ‘background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender’.

[83] The specific area where I find mitigation based on the IRCA relates to the drug convictions for Christopher Husbands and the drug activity, including the sale of crack cocaine, which he acknowledged but was never charged for. He grew up in extreme poverty in Guyana. He later experienced a different level of relative financial distress as he went through his teen years in Canada. He graduated from selling marijuana to the preparation and sale of crack cocaine to make money for clothes, food and transportation to school and to employment. While his drug activity cannot be excused it must be understood in his specific context. By all accounts he sold drugs to allow him to purchase necessities. Somewhat ironically this permitted him to participate in pro-social activities in the community and employment. To some degree the impact of race and discrimination specifically on him mitigates the seriousness of his criminal record and criminal activity for which he was never charged.

[84] How much does the impact of race and culture impact on the ultimate decision in this case? There is no doubt that Christopher Husbands was victimized on various levels after his arrival in Canada based on his race. There is also no doubt that the opportunities and choices available to him were restricted through no fault of his own based on his race.

[85] In R. v. Gabriel, 2017 NSSC 90 Justice Campbell referred to the purpose of such reports related to racial or cultural groups that have been the subject of notorious long systemic discrimination at paras. 52-54 inclusive:

The purpose is not to justify a discount with respect to an otherwise appropriate criminal sentence. In a community wracked by violence and struggling to find ways to deal with the complex web of causes that have its young men being killed or sent to jail, it would be wrong to suggest that there should be a lowered standard of moral responsibility. The purpose of the Cultural Assessment is not to justify lower expectations or to offer excuses. It is to provide some level of understanding.

Sentencing involves attention to both incident and context. The seriousness and devastating consequences of a crime are considered in the context in which it was committed. The context may be narrow and it may be broad. The context may involve the capacity for moral judgment or regulation that is diminished by immaturity or intellectual deficit. Those are both examples of context that are easily related to the individual and the crime that he committed. A background of family dysfunction and childhood abuse may, in part, form the person who committed the crime and despite sometimes being less obviously related to the offence are widely considered as part of the relevant context in sentencing. What may be otherwise inexplicable may become understandable with the benefit of that contextual information.

A person’s racial background is also a part of his identity. It does not determine his actions. It does not establish a lower standard for assessing moral culpability. It does not justify or excuse criminal behaviour. It may however help in understanding the broader circumstances that acted upon the person.

[86] At para. 114 he added the following:

Sentencing involves elements of denunciation and retribution as well. It is important that crimes of violence be treated in a way that reflects society’s abhorrence at the taking of the life of another person. Punishment for a crime is not an outdated concept.

Evidence of Camisha Sibblis

[87] Camisha Sibblis was called as a fact witness related to the IRCA report prepared by Dr. Urbanik. She is currently completing her PhD in social work at York University. She also has a practice as a clinical social worker. She conducts clinical investigations for the Office of the Children’s Lawyer. The focus of her work is systemic anti-black racism. She testified at the sentencing hearing on the Morris case. Counsel for Christopher Husbands did not seek to qualify her as an expert. Rather she provided a detailed social history of Christopher Husbands related to the impact of anti-black racism on his life. She prepared a report that was filed as an exhibit.

[88] The material reviewed by Camisha Sibblis included the following:

• The transcript of the trial evidence of Christopher Husbands.

• The notes made by counsel for Christopher Husbands of the trial testimony of Natoya Husbands.

• The reports of Dr. Gojer and Dr. Pomichalek who testified as expert witnesses for the defence at trial.

[89] Camisha Sibblis interviewed Christopher Husbands and the following collateral sources:

• Sheena Robertson who had been a teacher of Christopher Husbands when he was in elementary school. Over time she became a mentor to him.

• Omar Sybbliss, a prior acquaintance and colleague of Christopher Husbands.

• Kenyatta Stennett, a “best friend” of Christopher Husbands.

• Natoya Husbands, sister of Christopher Husbands.

[90] Camisha Sibblis testified that she has experience interviewing people from neighbourhoods like Regent Park and other marginalized communities.

[91] Natoya Husbands told Camisha Sibblis that she and her siblings had a hard time adjusting to the Regent Park community when they arrived. They were made fun of because other youth in the community were not as dark. Their dialect and the clothes they wore were highlighted by others and made them feel insecure.

[92] The information she received from and about Christopher Husbands included the following:

• He was bullied and ridiculed due to his very dark skin.

• He was insulted by police related to the darkness of his skin.

• He was called the “n” word.

[93] Christopher Husbands said he had never experienced racism until he came to Canada. Camisha Sibblis noted that his experience of poverty and oppression was fundamentally different from his sisters who had different mobility paths and ability to leave and succeed outside the community.

[94] Christopher Husbands recalled always being accused of stealing when something went missing from parties hosted by and largely attended by white people. He attributed this to his skin colour and the clothes he wore. He felt as though being accepted by white people elevated his status considering the negative connotations ascribed to his black skin.

[95] Christopher Husbands and his sister Natoya said that the family poverty in Guyana included their mother forcing the children to steal for her to support her addiction. Their father was absent. They referred to physical and sexual abuse by caregivers and routine corporal punishment. This made Christopher Husbands fearful and hyper-vigilant before coming to Canada. He observed violent incidents involving his mother and uncle in Guyana. Their father would send large containers of goods from Canada. This led to theft and robbery incidents at their home in Guyana.

[96] Christopher Husbands described being the victim of police harassment. About one year after his arrival in Regent Park he says the police pulled a gun on him. The problem was that living by legal means and separating oneself from the street social life also made him a target. There appeared to be no escape from victimization. Christopher Husbands felt his options were limited. He claims he was falsely labelled a gang member by police. The mistreatment by the police made him feel rebellious and angry. The “street code” portrayed the police as the oppressors and discouraged any cooperation with the police.

[97] Christopher Husbands described a process in Regent Park where older young men would recruit younger ones to hold on to contraband, such as drugs or weapons. Christopher Husbands claimed that he held on to contraband when he was younger but did not recruit others to do so when he was older and dealing drugs himself.

[98] Camisha Sibblis concluded with her opinion as to the prospects for rehabilitation for Christopher Husbands. I have considered her comments in the same way that I would consider those routinely contained in Presentence Reports. She reported the following:

Considering Mr. Husbands resilience, sense of justice, and ambition juxtaposed against the plethora of tragedies in his life, it is a reasonable expectation that he will respond well to counselling and will be a good candidate for rehabilitation. With an opportunity to start his own family, intensive therapy to unpack his childhood, family relationships, his losses and his trauma, as well as opportunities for success through leadership and positive influencing the lives of others, there is reason to believe that Mr. Husbands could be a positive contributor to society.

Mental Disorder as a Mitigating Factor

[99] In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is the illness is an underlying reason for his aberrant conduct. Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds. R. v. Prioriello, 2012 ONCA 63 at paras. 11-12, R. v. Robinson, [1974] O.J. No. 585 (C.A.).

[100] Establishing a causal link will make mental illness a stronger mitigating factor at sentencing than if the mental health issue only serves to explain the offending behavior. Durno J. in R. v. A.C.K.T., 2015 ONSC 1169 explained this distinction at para. 24:

Where there is a demonstrated link between an offence and a mental health issue, the sentence may be reduced as rehabilitation can play a more prominent role in the sentencing and general deterrence may play a less prominent role where there are mental health issues that caused or contributed to the commission of the offence. In addition, the offender’s moral culpability would not be as high as other persons committing the same offence without a link to a mental illness. R. v. Shahnawaz (2000), 2000 16973 (ON CA), 149 C.C.C. (3d) 97 (Ont. C.A); R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.). It is not automatic that a link results in a reduced sentence. R. v. Corpus, [2002] O.J. No. 549 (C.A.)

[101] In R. v. D.D., 2018 ONCA 134 the accused had been convicted of horrendous acts of sexual violence against his 11-year-old son. At trial the defence sought a verdict of NCR. The trial judge accepted that the accused may have suffered from depression and PTSD but rejected the NCR defence. At sentencing there was expert evidence that the accused suffered from PTSD and a depressive episode but was not delusional. That evidence also included the opinion that the PTSD and depression contributed substantially to the commission of the offences. There was contrary expert evidence that the PTSD at the time of the offences was mild to moderate in severity. The trial judge held that the accused’s mental health provided some explanation for his behaviour but not the cause of it. He considered the expert evidence as well as videos of the accused torturing his son. Based on that he was not inclined to make rehabilitation the focus of the sentence instead of denunciation and deterrence. A sentence of 15 years less credit for presentence custody was upheld on appeal. The court ruled that the trial judge properly assessed and weighed the expert evidence with the other evidence including the videos. They found no error in the factual analysis concerning the role played by the accused’s mental health in the commission of the offences. The court also declined to interfere with the conclusion to give denunciation and deterrence the primary consideration on sentence.

[102] Rehabilitation as a goal of sentencing is not the restoration of the offender’s physical and mental health but his reinstatement as a functioning and law-abiding member of the community. R. v. Shahnawaz, 2000 16973 (ON CA), 51 O.R. (3d) 29.

[103] The defence and Crown expert forensic witnesses agreed that as of June 2, 2012 Christopher Husbands had PTSD related to the attack he suffered on February 28, 2012. They disagreed on the extent of that mental disorder. There was a significant disagreement as to whether Christopher Husbands was in a dissociative state related to his PTSD in the immediate circumstances just before and during the shootings. The jury by their verdicts did not accept that he was in a dissociative state. The principal expert witnesses for both Crown and defence also agreed that he had an Antisocial Personality Disorder (ASPD). At the sentence hearing Dr. Gojer testified for the defence that the PTSD was in abatement.

[104] The rejection by the jury of the NCR defence is the context for any consideration of mental disorders at the sentencing phase. The jury did not accept that Christopher Husbands was in a dissociative state when he fired the shots. There was no evidence that he was out of touch with reality or that he heard voices that told him to draw the gun and begin firing. There was no evidence or suggestion that his conscious choice to carry a concealed, loaded handgun with him throughout that day was in any way caused or influenced by PTSD. He recognized two of the men in the group descending on the escalator as among those who had seriously confined and stabbed him four months earlier. His PTSD may well have been a factor in his being hyper-vigilant and reacting quickly to the sight of those men. He fired shots toward the group, killing two and wounding five others in the food court. His actions were rational in the sense he saw two men he would have an understandable reason to resent or harm. His PTSD may have caused him to react very quickly as he continued firing as he walked towards the group of men with his arm out holding and firing the gun. One of the two men he recognized received the greatest number of wounds. This was not random and it was not self defence. The PTSD to some extent may explain the speed with which events unfolded. It may well have been a factor in the jury having a reasonable doubt as to whether the intent to kill had been proven. The PTSD did not cause these events but presents part of an explanation. I do not view the PTSD as a significant mitigating factor on sentence in this case.

Rehabilitation

[105] Counsel for Christopher Husbands filed academic records and letters of support. They include the following:

• Confirmation of participation in the Connections Literacy Initiative for 2018-2019. This was offered by Centennial College. It could lead to upgrading to work towards college entry.

• Letter dated July 7, 2019 from Sheena Robertson. She was a teacher who met Christopher Husbands shortly after he arrived from Guyana. Over the years she became a confidant and friend. She helped him enroll in the Pathways to Education program. She was very familiar with the challenges he faced growing up in Regent Park. She has maintained contact with him since his arrest on these charges. She believes he is remorseful and takes responsibility for his actions.

• A letter dated May 17, 2019 from Christina Parry. She has known Christopher Husbands for 3 years and has been engaged to marry him for 2 years. She is very supportive of him and believes he has potential to do good if he is released.

• Letter dated July 11, 2019 from Kristen Desmond. She has known Christopher Husbands since 2004 when they met in Regent Park. She wrote that he is friendly and considerate with everyone, an ideal friend.

• A letter dated June 5, 2019 from Margaret Virginia Dickie. She is a retired teacher who taught Christopher Husbands in grade six. She also knew his sister Neola. She continues to see Christopher Husbands since his arrest. She describes him as polite and well-spoken, and determined to continue his education. She views his potential for rehabilitation as very good.

• An undated letter from Marlon Husbands, the older brother of Christopher Husbands. He strongly believes Christopher Husbands can change and is obviously familiar with the challenges the family faced in Guyana and then in Canada. He believes that with the right support his brother can become a great member of society.

• An undated letter from Dylan Moon who has known Christopher Husbands since he was 14-years-old. He describes Christopher Husbands as an amazing father and friend. He offered to employ Christopher Husbands on his release at a construction company he operates.

• Letter dated July 12, 2019 from Natoya Abiyola, the oldest sister of Christopher Husbands. She remains in close contact with him and has heard him express great remorse for his actions. She is obviously familiar with the challenges faced by her family in Guyana and then in Canada. She states that Christopher Husbands aspires to work with children and youth as he has done in the past.

• Letter dated July 20, 2019 from Burchell and Celene Husbands, the father and step mother of Christopher Husbands. They describe Christopher Husbands as a loving son, brother, father and uncle.

[106] Dr. Julian Gojer prepared an updated report dated July 15, 2019 and testified on the sentence hearing. He had interviewed Christopher Husbands before both trials and testified at both. He maintained his opinion that Christopher Husbands was properly diagnosed with PTSD and ASPD as of the date of the shooting. At the sentence hearing he testified that the PTSD is abating. In light of various factors he opined that Christopher Husbands “possesses characteristics that point to a high risk to the public” in an untreated state. However, he indicates that with counselling and lifestyle changes the high risk of harm to the public can be significantly lowered. Based on programs available in the federal system Dr. Gojer believes that a term of 3 - 5 years in that structured setting would likely be required to complete those programs. He foresees the “risk to the public attenuating to a degree that if left unsupervised he will be a low risk of harm.”

[107] Based on all the information presented on sentence my view is that prospects for rehabilitation are guarded, at least for the next few years, subject to programs referred by Dr. Gojer.

Remorse

[108] If a court accepts that an accused is genuinely remorseful that would be a mitigating factor on sentence. Christopher Husbands now claims to be remorseful for what happened and has said so to some of the expert medical witnesses as well as family, friends and supporters. He also expressed remorse in addressing the court before sentence was imposed.

[109] In his evidence in chief at trial Christopher Husbands testified that he found out that Nixon had died about ten days after his arrest. He said he was angry but also sad that Nixon had died. He said it was not something he wanted to happen.

[110] Based on those comments in response to his own counsel I revisited an earlier ruling that excluded portions of letters Christopher Husbands had written to Roxanne Charles while he was in custody awaiting trial. Those redacted portions referred to seeking revenge if he was convicted on those who had attacked him on February 28, 2012. I made clear in my earlier ruling that the redacted portion could become admissible if the defence elicited evidence inconsistent with the animus towards Nixon, Nisan and others in the redacted portions. In light of the evidence of Christopher Husbands in chief those redacted portions were now ruled admissible. That evidence was inconsistent with the regret related to the death of Nixon that Christopher Husbands chose to express in his evidence in chief. It is also inconsistent with genuine remorse.

[111] Many years have passed since the deaths and injuries were caused by Christopher Husbands. His professed remorse in 2019 stands in contrast to what he wrote in letters to Roxanne Charles in 2012. His remorse today may be genuine. However, I find based on all of the evidence and information available that his remorse is ambiguous at best. I do not view that as an aggravating factor. Rather it is the absence of what would otherwise be viewed as a mitigating factor. The dominating impression based on all of the evidence at trial and on sentence is that Christopher Husbands views himself as a victim, both before and after the events of June 2, 2012. There is no doubt that he was the victim of a serious protracted attack in February 2012 by several men, including Nixon and Nisan. He was also a victim of poverty and violent circumstances beyond his control as a young person. That self-image appears to leave little room for remorse for the deaths and injuries he caused.

Aggravating Factors

Victim Impact Statements

[112] In ss. 722 and 722.2 the Criminal Code states that the court at sentencing shall consider the impact of the crimes on the named individual and community victims. The two deaths and other serious injuries caused by Christopher Husbands constitute serious aggravating factors on sentencing.

[113] In R. v. A.G., 2015 ONCA 159 at para. 73 the court held that it is not an error in principle for a sentencing judge to determine that the impact of the crime as set out in a victim impact statement is an aggravating factor. Otherwise victim impact statements would have limited utility and the mandate to consider them as part of the sentencing process in s. 722 of the Criminal Code would be rendered meaningless.

[114] R. v. F.O., 2016 ONSC 7654 was a case where a gun fight broke out at a community beach party when the offender was denied admission. There were three shooters. Close to 30 shots were fired. Two people were killed and more than 20 others were wounded, including a 22-month-old child. Justice Nordheimer made the following thoughtful comments regarding the impact of such an incident on the victims, their families and the community at paras. 17-19:

I will not pretend that I can truly appreciate the extent of the impact that the loss of a young girl, or a young man, has on their parents, on their brothers and sisters, and on other family members. I do realize, though, that the grief that remains with them, and the emptiness that they continue to feel, is deep and it is permanent. Violence, in this case unthinkable violence, does not discriminate in the harm that it spreads. It is harm that impacts most significantly on the people closest to the victims, but it also impacts on our entire community, particularly when individuals who are so young, and so promising, are lost to us.

None of that changes the reality that, whatever decision I make respecting the respondent, will not change the world that now exists for the loved ones of the victims. The justice system has a role to play in redressing the harm that has been caused, but it is a very limited role. Nothing in our justice system, or any other justice system, could ever possibly right such a terrible wrong.

That reality does not mean, however, that we should ever become complacent, or indifferent, about these acts or their consequences. Nor should we ever fail to take steps, that are available to us as a society, in an effort to prevent such events from being repeated. As one of the victims in this case alluded to, we must never allow cases, such as this, to be treated as just another headline in this city.

Excerpts of Victim Impact Statements

[115] Submitted by Amran Hassan (On behalf of Hassan family)

On June 2nd, 2012, my baby brother Ahmed Hassan was gunned down in the Eaton Centre. That day, my life, and the lives of many other people changed forever at the hands of Christopher Husbands.

Ahmed was born June 14, 1987 in Mogadishu, Somalia. He spent the early years of his life living through civil war in his home country and as a refugee in Kenya until he arrived in Toronto, Canada in November of 1995. He began elementary school in Toronto and would spend much of the remainder of his life there. Ahmed graduated high school in 2005. He went on to study at George Brown College, something he never got a chance to complete. Ahmed was a caring, loving young man. He was someone that placed his family and friends above all else. He loved and was loved by mostly everyone he knew. He was a quiet guy, never one to say much. He spoke no ill-words of others and wished no harm on them either. He was a brother, a cousin, a son and grandson, an uncle, a friend, a student, and most of all he was a person.

The effect that this tragedy has had on our family members continues to this day. Members of my family continue to suffer in many different ways, some cannot even speak Ahmed’s name or talk about what happened to him, to this day.

Ahmed today would’ve been 31 but he didn’t get to live to see this age. We hope to get justice and some peace of mind for Ahmed and the rest of the victims that were tragically affected that day.

[116] Submitted by Amal Hassan

Ahmed’s death sent shockwaves through our family and I can still vividly remember watching the news and hearing about a shooting at the Eaton Centre, seeing a body bag flash across the television screen. The loss and grief struck our mother, father and his eight siblings and will continue to strike our family for the rest of our days. He was a kind and caring brother who would go out of his way to help all of his siblings. The loss of our brother at 23 has left a gaping hole and silence where he once was. He was loved by a large family, a close-knit extended family and many friends.

[117] Submitted by Jo-Anne Finney

It has been seven years since my thirteen-year-old son Connor was shot in the head in the Eaton’s Centre and left bleeding to death. While my fifteen-year-old daughter, Taylor and I tried to stop him from dying.

Connor is never safe, and I am always afraid.

But here I am, 7 years later and afraid, Connor has had 7 years of excruciating brain surgeries, strong medications that damaged his stomach, frontal lobe brain injury that has impaired his executive function. This makes it hard for him to plan, initiate and evaluate ongoing tasks.

And as the experts that have assessed him say, Connor has permanent brain impairment that will have a negative effect on his functioning for the foreseeable future.

He can never fall down and hit his head or be in a minor car accident or even just bump into someone. A hit to his head again would likely mean certain death. That is why I am afraid.

There is no end in sight for Connor or our family. We will keep suffering thru the time and cost of medical complications, brain injury complications, counselors, therapists and experts, in our efforts to give Connor the best life possible.

[118] Submitted by Taylor Stevenson

One man’s decision to carelessly open fire with a gun in a packed food court, and shoot my brother in the head, has changed our lives in every aspect imaginable.

After the Eaton Centre shooting, my mental health was dramatically affected. This included surrounding Connor’s health. I live every day wondering and checking to see if Connor is okay physically and mentally. The stress, anxiety, OCD and depression that has evolved due to this event is sometimes unbearable.

Connor has to deal with not only the mental impact, but also the physical impact of the shooting. No individual can imagine what Connor has been through and is still dealing with. The complexity of a brain injury cannot be easily explained so people can understand.

All of the mundane activities in his life now always carry a risk of trauma to his head. The mental repercussions often keep him from enjoying his life to the fullest. I am worried that one day Connor will be pushed over the edge mentally, because he can never forget what happened to him that day.

We are terrified of life after trauma because we have seen what can happen to innocent victims.

My brothers’ injuries will never heal. You can’t give back traumatic brain injury. It is there forever. The impact from this event will last his entire life.

I watched him go through the most painful brain surgeries an individual could ever imagine, and even more painful recoveries. It is clear that Connor loses in this scenario and will have to suffer for the rest of his life. He can never escape his injuries.

[119] Submitted by Connor Stevenson

Six years ago, when I was just thirteen, I was shot in the head at the Eaton Centre.

My life from that point on changed forever. I was no longer just a normal kid. I would forever live with my injuries and a bunch of complications.

I will never be able to lead a normal life because a selfish man decided that his personal vendetta outweighed the lives of everyone in the mall.

Now I have to live my life as a lie. A lie that I am ok. A lie that I feel comfortable walking down the street. A lie that I don’t feel excruciating pain randomly throughout the day.

On good days, I attend classes. I write my assignments down, but due to memory issues that are part of my traumatic brain injury, by the time I am home, I may have forgotten about my assignment, or even the fact that I wrote it down at all. Often, I don’t like being in crowds or around other people. Sometimes even going to family events is just too much. I have lost my sense of direction completely, if I don’t have a GPS with me at all times, I simply don’t know which direction to go. And, recently I bumped my head and had to be rushed by ambulance to the hospital for a cat scan after I passed out. Another head injury could kill me.

On bad days, I can’t even lift my head from the bed. The headaches are so crippling, and I just lay in bed with the lights off, sometimes for a few days.

I am changed forever, because of the shooter at the Eaton Centre.

[120] Submitted by Craig Stevenson

I am the father of Connor and Taylor Stevenson.

Connors’s life and our lives changed forever in a split second when Christopher Husbands unloaded a full clip of 14 bullets into a busy food court hitting Connor in the head.

Christopher Husbands callous act changed our lives forever as it started a long hard road of surgeries and healing physical and mental wounds. He handed our family a life sentence.

I walked into Sick Kids Hospital to see Jo-Anne and Taylor covered in Connors blood from head to toe. I then went into see Connor and startled to see our little boy in a coma and hooked up to all the monitoring equipment and 3 tubes down his throat.

With the fast work of the first responders and the doctors and nurses they saved his life.

The surgeon had to remove almost a third of Connors skull to pull the bullet out of his head.

We had to teach Connor everything again even how to walk.

6 surgeries, months spent in the hospital. 1200 stiches. Even today we are now looking at a seventh surgery. While Connor’s friends were out playing the summer of 2012, Connor spent it in bed wearing a helmet because half his skull was off. Our nightmare will never end.

Connor has to deal with headaches everyday. He has anxiety that keeps him from public places and has impacted his personal and family relationships.

This 5 second decision that Christopher Husbands made has cost our family and the other victims months and years of lost time. Even now 8 years later Connor spends day after day in his room, alone.

Connor’s childhood was taken away. His days now are spent in his room. Behind a closed door as Connor serves his life sentence delivered to him by Christopher Husbands.

He cannot play the sports he loves. He cannot take the risk of hitting his head because of his brain injury. He cannot do any activities that will increase his heartrate because the plate in his head keeps his skull from expanding thus creating excruciating pain and incapacitating him.

I have had to sell my house and move close to Connor’s school allowing Connor to live with me because he found it too overwhelming to be on his own while dealing with PTSD.

It is hard to watch your child suffer day after day with no end in sight.

I felt devasted, traumatized and confused sitting through the trial watching the court process.

I feel afraid that someone can have a loaded gun in a public place. I don’t want another family to have to go through what we went through. My family and I should feel safe to go to any public place. After this horrific shooting we don’t feel safe in any public places.

Christopher Husbands has inflicted a life sentence of pain and suffering on my son Connor, my daughter Taylor and their mother Jo-Anne, myself and many other victims from the Toronto Eaton’s Centre back on June 2nd, 2012.

[121] Submitted by Vigneswary Nirmalendran

We are a small family; father mother and 3 sons. Nixon was the oldest son, Nissan was the second and Nirusan is the youngest. My son was a good son; I tried to bring him up very well. When we sat together as a family to eat, these were the best moments of my life. Nixon always assured me not to worry about anything; that he would take care of us - me, his father and his brothers. Even when my husband got sick, Nixon was the one who brought my husband to the doctors, interpreted for him and did everything for him. When his brothers graduated, Nixon was the one who brought them to the store, bought them clothes, got them dressed, took photos and brought them to their graduation ceremonies. Nixon always assured me that he would take care of all of us. He was especially very fond of his youngest brother Nirusan; he loved him so much.

My husband came here alone, and he was the one who sponsored us. Nixon was only 4 yrs. old, Nissan was 3-years-old and Nirusan 1 ½-years-old; we came here and struggled to bring them up well, but no one thinks about that. Nixon was studying very good when he was in high school; he wanted to be a computer engineer back then; he got up at 5 o’clock in the morning to go to class. He was accepted at Centennial College, George Brown and Seneca College for Child and Youth Worker. We feel very isolated from our friends and family now. I was so affected by both my son’s deaths. My three boys were my life; I spent my life for my husband and my 3 children, I would go hungry for them; all of them were very loving. My husband and I cry; everyone else’s children get married and they have grandchildren, but we will never have that for Nixon.

[122] Submitted by Donika Morgan

June 2012 my life changed drastically. My fiancé was shot down at the Toronto Eaton Centre. At the time, I was three months pregnant with Nixon’s first child. I thought I would miscarry because I could not eat nor sleep. After my son was born I faced challenges such as financial struggles and overall just found it difficult to come to terms with the reality that I am living in.

My life went from almost becoming a wife to being sad and alone. Almost every night I have to comfort a 6 year. My son fears for his life - a 6-year-old baby. He missed out on the opportunity to know who Nixon was. He asks so many questions about who his father was and often wears Nixon’s old student identification card around his neck just to keep him close, to be able to look at him.

My first child has also been affected by this situation. He has trust issues because he believes that every male figure that comes in contact with him is taken away. He often tells me how much he misses Nixon and tells his little brother stories about his father.

Losing Nixon has only added to the trauma I have already endured and has left me living a paranoid life, scared to meet new people, scared to try new things, scared to go into the downtown Toronto area.

Nixon’s son didn’t have much to say to the courts except for: I love my Dad. I wish I got to meet him.

[123] Submitted by Tasnuva Mahmood

Ever since the assault, I am afraid to go out to public places. I am really anxious when I find myself in large crowds. Eaton Centre is not a place where I go to unwind with my friends anymore.

The assault took the sense of safety and optimism away, because it is a reminder that bad things do happen to me. Every time, I read about a shooting in the news, I relive the moment of chaos and sheer terror that I had once experienced, like the victims in the news.

No one should have to go through what I have experienced. I want to feel safe again. My parents and sisters went through a very rough time due to the assault. They also had to give up their time to care for me.

The emotional aspect was only a part of the aftereffects of the crime. The injury kept me immobile, for a greater part of the initial three months, followings the assault. I had to undergo three months of physiotherapy, five days a week. I wasn’t able to bend my leg during this time, and I could only walk with the assistance of crutches, and later a cane. The first two years, I couldn’t run or partake in intense physical activities for too long, because it would result in unbearable pain in my leg. Today, after six years, my leg feels stiff, and aches if I am out for long in the cold. Some days I still wake up with an aching leg, and other days it will ache when I’m going to bed and will keep me awake.

The treatment for the injury resulted in a financial impact.

Something like this, not only affects the victim, but everyone in their lives.

[124] Submitted by Hanna Kim

Since the accident, I suffered emotionally and psychologically. For example, if I hear any types of loud noises that sound even a bit like gun shots, I would immediately start to cry within half a second, because all the images and dreadful feelings of the moment would come back to haunt me every time.

When the homicide took place, I had to endure the time of suffering alone, since my parents were not with me to comfort, but they were in my hometown, and I returned with my family back in Korea, and tried to recover from the traumatizing experience.

[125] Submitted by Kessia Frederick

I, Kessia Frederick am writing this letter to express the pain and suffering that I felt on June 2, 2012 after being seriously injured both physically and mentally. The pain in my joints and injuries to my wrist and ankle are persistent. They constantly swell; they are painful and have not yet healed. The fracture to my wrist has not healed and my bone is twisted because at the time of these injuries I was seven months pregnant and could not be X-rayed to see the damage. My hand was in a shoulder splint and wrist splint to keep to straight and it was my right hand. I use that for everything and I was unable to do anymore walking or standing for long lengths of time. Daily tasks such as cooking, cleaning, washing my hair, laundry, house work etc…I had to get assistance with all these tasks.

I had to continue my last trimester in lots of pain and also with the thought of not knowing if my baby was ok and whether he was going to make it. I thought I was going to lose my unborn baby and wondered everyday if he was injured in my tummy. This gave me serious depression and also gave me panic attacks. The panic attacks were from not knowing if he was ok because I was in so much pain and couldn’t move both legs or walk because my ankle was swollen. I had to take pain medication and I wasn’t sure about the effects it would have on my unborn baby. As well, I didn’t know the effects from the medication that was administered to the fetus to stop and slow down my contractions which were present at the scene.

This experience was worse than a nightmare, but it was so real, scary, lonely, and very stressful.

I still have issues with being in malls especially the Eaton Centre and crowed places such as night clubs or even public events; I still get scared. I don’t have a social life because I’m too scared of going out in crowds. I live in lots of pain daily both mentally as well as physically. I wonder how I can make this pain go away because I have two kids to take care of and I’m not getting better.

[126] Submitted by Erin Troubridge

Emotional Impact

I was one of the lucky shoppers on June 2, 2012 since I walked out of the Eaton Centre physically unharmed, however I was one of the many who will be forever altered mentally and emotionally by this experience. We are all connected, and the impact of this incident has had a ripple effect that went beyond the direct victims and extended out to our families, our community and even our country.

[127] Submitted by Giselle Purcell

Since the shooting happened my life has changed dramatically. I have suffered from post- traumatic stress. I had to take an extended absence from work and seek treatment from a therapist. I get anxiety if I’m in a crowded area or confined space. I used to love going out with my friends and I can’t do that anymore. I wish this never happened, so I could have life back.

[128] Submitted by Westwind Evening

I go to Anishnawbe Health Toronto for support and weekly counseling sessions. The counseling session last for about a year. I had to relive the day of the shooting during a few of these sessions. I kept going to counseling every week, but they did not seem to help me. Instead, I was beginning to have days where I felt depressed for no apparent reason.

What I struggled with the most is the feeling of not being in control of my life. Helplessness can be very debilitating. This was the biggest impact of witnessing the Eaton Centre shooting. And I don’t think you can fully recovery when the memory of the incident remains indefinitely.

[129] Submitted by MinHo (Michelle) Cho

I have been affected mostly emotionally by the incident – the fear of something similar happening again around me. Because of the sound I heard at the Eaton Centre food court when I became the witness of the incident, I have become very sensitive of any sounds that mirror the sound I’ve heard on that scene. Also, when I was in a café chatting with friends, suddenly the lights went off, I became very scared that something similar to the Eaton Centre incident would happen.

[130] Submitted by Elvis Fraser

Since this happened, this has really affected my life. I feel like I don’t have the strength to do the things that I want to do anymore.

My daughter is definitely traumatized from this. After this happened, my daughter was afraid to go to the washroom at school by herself. She was afraid to sleep by herself. She was just a little girl when this happened. Now, she’s 14 and even when we’re out together at the mall or in crowds, I notice that she is always clinging on to my arm and she stays close to me.

Community Victim Impact

[131] This statement was a joint submission of Dr. Wendy Cukier, President of the Coalition for Gun Control and Priscilla de Villiers, Executive Director of the Victim Justice Network. I received and considered this statement related to the impact of this type of shooting incident in a public place. Gun control is a very important matter of public debate and concern. However, that is not for this court to decide. I am dealing with the impact of this shooting in a public place. The community impact statement in this case included reference to the following:

Shooting incidents in public places have devastating negative effects not just on person who are killed or wounded. It also impacts on their immediate family and friends and the larger community.

[132] The Crown filed information on sentence that it was a busy night within the Eaton Centre and specifically the food court at the time of the shooting. There were approximately 725 - 750 people in the food court and approximately 4100 visitors in the Eaton Centre at the time. The various video surveillance records of the shooting show mass confusion, chaos and desperate attempts to avoid being hit. It is only reasonable to find that those who were present and not hit by bullets were also burdened by fear and anxiety as a result of what they saw, heard, and experienced.

Further Aggravating Circumstances

On Bail at the Time of These Offences

[133] On December 2, 2010 Christopher Husbands was released on a recognizance in the amount of $2000 and two sureties. The terms of his release included the following:

• Not to possess or use non-medically prescribed drugs or illegal drugs.

• Reside with his surety.

• Subject to house arrest, to be in his residence at all times except when going directly to and from school, and while at school or in the direct company of one of his sureties.

• Not to possess a cell phone.

• Abstain from communicating directly or indirectly with the complainant on the sexual assault allegation except through legal counsel for the purpose of court proceedings.

• Not to possess weapons, including any prohibited or restricted weapon or ammunition.

[134] As of the date of the shooting at the Eaton Centre Christopher Husbands was still subject to all of these terms and was in breach of all. All court orders are serious but the most egregious violation was that he possessed, carried and fired a loaded handgun on that day.

Circumstances of Having a Loaded Handgun that Day

[135] The fact that Christopher Husbands went to the Eaton Centre that day with an illegal loaded semi-automatic handgun is a serious aggravating feature on sentence. He testified at trial that the day before the shooting he had been given the gun and asked to hold it by a man who later died in an unrelated incident. There was also evidence at trial from a co-worker and Christopher Husbands about a discussion they had after the incident in February 20, 2012 when he was attacked and stabbed. Christopher Husbands told his co-worker that he believed that the laws in Canada should be changed so that people could carry guns to defend themselves if necessary. Christopher Husbands testified that when he agreed to hold on to the handgun the night before the shooting he had no plan or intention to commit any crimes with the gun. He also testified that when he carried the handgun into the Eaton Centre he had no plan or intention to commit a crime. However, it was readily available for him to draw, point, and fire some 14 shots. There must be a significant aspect of deterrence to those who would carry concealed handguns in any public place whatever the circumstances in which they came to possess and carry the gun. The potential for death, severe injury and mayhem is self-evident.

Not NCR - Not Random - Not Self Defence

[136] The crimes committed by Christopher Husbands can accurately be called a mass shooting in a public place. However it was different from the mass shootings that occur with distressing regularity in the United States. Those terrible incidents in work places, shopping malls, theatres and schools usually involve shooters who have no personal connection to the victims.

[137] In the case of Christopher Husbands he had a personal connection with some of the victims. He opened fire towards men who were among those who had attacked and stabbed him some four months earlier. He had a reason or motive to want to inflict harm on them. He was not in a dissociative state when he fired the shots. He recognized those men. The shots he fired were not random and were not in any form of self defence. He was not provoked. He consciously opened fire in a crowded food court on an early Saturday evening in Canada’s largest city. He was criminally reckless as to how many totally innocent bystanders could be caught in the line of his fire. Could this incident have been worse? Yes, it could easily have been three, four, five or more people killed or wounded by his actions.

Range of Sentence and Applicable Principle

[138] Counsel for Crown and defence presented helpful sentencing charts showing the wide range of dispositions in manslaughter cases from reformatory terms to life imprisonment. Cases involving firearms refer to the need to reflect general deterrence and denunciation as paramount factors. Rehabilitation is to be considered but to a lesser extent than in other types of cases. Those principles apply even in cases where there is simple possession of loaded firearms without death or injury involved.

[139] In R. v. Jarsch, 2007 BCCA 189 the police stopped and searched a vehicle. They located several loaded guns. The accused was one of the occupants of the car. He was 33-years-old with a minor criminal record. He was sentenced to two years less a day less credit for pretrial custody. The trial judge referred to the following:

• The paramount objectives for these offences are public safety, general and specific deterrence and denunciation.

• Rehabilitation while important is a secondary concern.

• The essence of these offences is the potential for violence and physical harm. The degree of readiness of the offender for violent actions can be an aggravating factor.

[140] The sentence appeal by the accused was dismissed. The court referred to the offences as “egregious and fraught with danger”.

[141] In R. v. Lacasse, 2015 SCC 64 at paras. 57-58 the court referred to the proper use and limitation of ranges of sentence in crafting a sentence that fits the offender and the crime:

Tariffs differ from sentencing ranges in that tariff‑based sentencing is theoretically the opposite of sentence individualization, which the ranges allow: Thomas, at p. 8. On the other hand, the principle underlying the two approaches is the same: ensuring that offenders who have committed similar crimes in similar circumstances are given similar sentences. The same is true of the starting‑point approach, which is used mainly in Alberta but sometimes also in other Canadian provinces: R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at para. 69. Ultimately, whatever mechanism or terminology is used, the principle on which it is based remains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge.

(R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

(Nasogaluak, at para. 44)

[142] In R. v. Almaktari, 2010 ONCA 802 the accused caused the death of another man by use of a firearm. He was charged with first degree murder. The jury found him guilty of manslaughter. He received a sentence of 15 years. The defence appealed the sentence. The court held that the sentencing judge respected the findings of the jury implicit in the manslaughter verdict. The court also held that it was open to the sentencing judge to find the facts “near to murder.” The sentence was high in the circumstances but was not unfit “for this brutal aggravated homicide.” The sentence of 15 years was sustained with a modification for credit based on presentence custody.

[143] In R. v. Higham, 2009 ONCA 147 the accused was sentenced to ten years on top of credit for nine years of pretrial custody. He had been convicted of manslaughter in a case characterized by the trial judge as close to murder. On appeal the facts were summarized very succinctly as follows at para. 2:

The appellant armed himself with a handgun, travelled with the victim in his vehicle, exited the vehicle, then shot into the vehicle, hitting the victim and killing him. The jury apparently had a reasonable doubt whether the appellant intended to hit and kill the victim when he discharged the firearm into the vehicle.

A sentence appeal by the accused was dismissed. The court held that the sentence was at the higher end of the range for manslaughter but close to murder in the circumstances.

[144] In R. v. Danvers, 2005 30044 (ON CA), 199 C.C.C. (3d) 490 the accused had been convicted and sentenced for second degree murder. The crime involved a shooting outside a busy nightclub in Toronto. The accused was sentenced to life imprisonment without parole eligibility for 18 years. On appeal the number of years of parole ineligibility was reduced to 15 years. The court commented on the paramount sentencing principles related to the use of handguns in public places in Toronto at paras. 77-78:

In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:

It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed. I am satisfied that in this case, the mandatory life sentence with an increase in parole eligibility to 15 years satisfies that concern.

[145] In R. v. Cheddesingh, 2004 SCC 16 at para. 1 the court addressed a reference by the trial judge to the concept of “stark horror” in imposing a life sentence. Chief Justice McLachlin stated that terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. A maximum penalty will only be imposed rarely and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness.

[146] In R. v. M.(L.), 2008 SCC 31 at paras. 17-22 the court referred to the issue of maximum sentences and the decision in Cheddesingh. The court noted that the maximum sentence is not always imposed where it could or should be. Such sentences are not reserved for the worst case, worst circumstances and worst criminals. Where such a sentence is warranted the judge should avoid comparisons with hypothetical cases. The maximum sentence cannot be reserved for the abstract worst crime committed in the worst circumstances.

[147] Counsel for Christopher Husbands submits that a life sentence for manslaughter in this case effectively amounts to a sentence for murder. I disagree. If Christopher Husbands had been convicted of two counts of second degree murder as he was at the first trial he would face a life sentence with an extended number of years of parole ineligibility. Pursuant to s. 745.51 of the Criminal Code there would likely be consecutive terms of parole ineligibility. For reasons that I will refer to later Christopher Husbands could be eligible for parole almost immediately with a life sentence in this trial. That does not mean that he would be granted parole in the near future. The point is he would be eligible to apply for parole years earlier than if he had been convicted of two counts of second degree murder.

Delayed Eligibility for Parole

[148] Section 743.6(1) of the Criminal Code empowers the court to consider an extended term of parole ineligibility. Section 743.6(1) is applicable where an offender is sentenced for certain offences, including manslaughter and aggravated assault, to a term of imprisonment for two years or more, including a life sentence – s. 743.6(1) states that the court may:

[I]f satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

[149] Based on the convictions in this case the Crown seeks an extended period of ineligibility for parole to a maximum of 10 years pursuant to s. 746.6 of the Criminal Code. My consideration of that submission will have to take into account credit for presentence custody, including a defence request for enhanced credit for portions of the presentence custody. The defence also seeks relief based on an alleged Charter breach related to the length of time Christopher Husbands was held in segregation while awaiting trial. That calculation could reduce or eliminate the maximum of 10 years of potential delay in parole ineligibility.

[150] In R. v. Zinck, 2003 SCC 6 at para. 33 the court referred to the “double weighing exercise” the sentencing court must perform on such an application:

As mentioned above, courts must perform a double weighing exercise. First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. This two-stage process, however, does not require a special and distinct hearing. It should be viewed as one sentencing process, where issues of procedural fairness will have to be carefully considered.

At para. 39 the court referred to the need to protect the public as a relevant factor.

[151] The power to delay parole should not be applied in a routine manner. The Crown bears the burden of demonstrating that this additional punishment is required. R. v. Carty, 2015 ONSC 8144 at para. 35.

[152] Dr. Julian Gojer testified for the defence on the sentence hearing based on an updated report of July 15, 2019. He opined that Christopher Husbands “possesses characteristics that point to a high risk to the public” in an untreated state. He testified that with counseling and lifestyle changes the high risk of harm to the public can be significantly lowered. Based on programs available in the penitentiary system a term of 3 - 5 years in that structured setting would likely be required to lower that risk. This evidence is highly relevant to the issues of protection of the public and whether deterrence and denunciation can be satisfied without an order for delayed parole eligibility.

[153] In this case, after considering the circumstances of the offences and the character and circumstances of Christopher Husbands, I am satisfied that society’s denunciation of the offences, the objectives of deterrence and protection of the public, would require that he serve at least 10 years before he would be eligible to apply for parole. Subject to my rulings related to credit for presentence custody issues I would have made that order.

Credit for Presentence Custody

[154] I can understand that some members of the public, including victims and their families, may question why and on what basis a person facing sentence is given credit for the duration and conditions of time spent in custody before sentence. I hope the following comments will explain why I am obliged to consider and factor in presentence custody and on what basis I will do so in this case.

[155] On a very basic level the judge must craft a sentence in light of all the circumstances that fits the convicted person and also fits the crime. The legal requirement that the length and nature of presentence custody be factored into sentence is not to bestow any undeserved benefit to the accused. It is a recognition that someone who has not been in custody before sentence should not be treated the same as someone who has been in custody. It is a recognition of the potential release date after sentence as compared to pretrial detention. The deduction of credit for presentence custody in no way diminishes the gravity of the crimes that were committed or the impact on victims.

[156] In the case of Christopher Husbands the Crown and defence called several witnesses and submitted extensive materials at the sentencing stage related to the time Christopher Husbands has been held in custody since his arrest on June 4, 2012. The issues raised included the following:

• The overall length of time in custody before today’s sentencing.

• Evidence that portions of the presentence custody were served in harsh conditions.

• Protracted lengths of time that Christopher Husbands spent in segregation. The defence submits that this amounted to a breach of the rights of Christopher Husbands under the Charter.

[157] The law provides that on sentence a judge must consider and factor in the time the prisoner has been in custody before being sentenced. It must be considered in arriving at a proper and fair sentence going forward. The law also provides that the judge must consider and factor in any portion of custody before sentence that is found to be harsh. This does not mean that persons held in custody are to be coddled. Rather, it recognizes that someone serving presentence time in custody in harsh conditions has sustained an added level of punishment compared to others who did not experience such harsh conditions. The judge must also consider any violation of the rights of the offender under the Charter related to his presentence custody.

[158] In R. v. Summers, 2014 SCC 26 at paras. 70-74 the court held that “in determining credit for presentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant.” In R. v. Duncan, 2016 ONCA 754 the court held that particularly harsh conditions could expand the credit above 1.5 to 1 for presentence custody. In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[159] Counsel for Christopher Husbands seeks further credit for portions of the presentence custody based on violations of ss. 7, 9, 12 and 24(1) of the Charter:

[s. 7] Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[s. 9] Everyone has the right not to be arbitrarily detained or imprisoned.

[s.12] Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[s. 24(1)] Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[160] I was greatly assisted by counsel with the presentation of a chart marked as an exhibit that shows the agreed upon time spent in presentence custody. The chart is as follows:

Time Spent in Presentence Custody:

Total Time in Custody (June 4, 2012 to November 30, 2019)

2,705 days

(7 years, 5 months)

Total Time in Provincial Detention Centres

2,081 days

(68 months and 13 days)

(5 years and 8 months)

Days in Provincial Detention Centre - Toronto Jail

June 4, 2012 to November 15, 2013

529 days

Days in Provincial Detention Centre - Toronto East

(November 15, 2013 to November 25, 2015 and August 10, 2017 to October 15, 2019)

1522 days

Total Time in Federal Corrections System

(November 25, 2015 to August 10, 2017)

624 days

(21 months and

5 days)

(1 year and 9 months)

Sexual Assault Sentence (October 23, 2012)

12 months

Time Spent in Segregation:

Total Time in Administrative Segregation

669 days

(22 months and 8 days)

Days in Administrative Segregation – Toronto Jail

(June 4, 2012 to November 15, 2013)

529 days

Days in Administrative Segregation – Toronto East

(November 15, 2013 to April 3, 2014)

140 days

Time spent on “Lockdown” at Toronto East:

Full day Lockdown

32 days

Partial Lockdown between 9:00 - 11:00AM (2 hours)

14 days

Partial Lockdown between 1:00 - 4:00PM (3 hours)

17 days

Partial Lockdown between 6:00 - 9:00PM (3 hours)

200 days

Time Spent “3 to a Cell” at Toronto East:

Housed with 2 inmates

509 days

[161] The parties disagree as to how various time periods should be characterized and assessed.

Summers Credit

[162] In terms of the Summers credit Christopher Husbands has been in custody for approximately 7.5 years. From that I would deduct 9 months related to the sentence of 12 months he received for a sexual assault conviction while he was in custody on these charges. Thus the Summers credit of 1.5 to 1 will be based on presentence custody of 6.75 years.

Duncan Credit Related to Harsh Conditions

[163] The Duncan credit and the alleged Charter violations are somewhat connected since the harsh conditions include the time spent in segregation. The Duncan credit is not predicated on an alleged breach of the Charter.

[164] The following issues were raised related to harsh conditions separate from the time spent in segregation:

• Conditions at the Toronto (Don) Jail.

• Inadequate access to medical care at both the Don Jail and Toronto East.

• Double bunking in segregation at the Toronto East.

• Sleeping on the floor and not being able to flush the toilet while in segregation at the Don Jail.

• Limited access to showers and yard time both at the Don Jail and Toronto East.

• Triple bunking at the Toronto East.

• Lockdowns at the Toronto East.

[165] The best thing that can be said for the Don Jail is that it no longer exists. That dark relic of the nineteenth century was the subject of adverse judicial and social comment for many years before it finally closed its doors in late 2013. Christopher Husbands was held there for 529 days after his arrest on June 4, 2012. He testified on the sentence hearing that the conditions there included vermin, rats, foul smells, overflowed toilets and mold in the showers. A former sergeant who worked there substantially agreed that those conditions existed. It would have been a very unpleasant place for custodial staff to work and a worse place for anyone detained there.

[166] No reasonable person expects detainees in custody to be coddled in luxury. However, people in Canada held in custody by the state have the right to be held in safe and clean surroundings. I have no hesitation in finding that Christopher Husbands was held in harsh conditions for his entire time at the Don Jail.

[167] I am not satisfied that Christopher Husbands was denied adequate access to medical care. There is evidence that he met with medical professionals (doctors or nurses) at least 35 times. There may have been frustrating delays from time to time but overall I cannot find that Christopher Husbands did not receive adequate access to health care while in custody.

[168] I am satisfied that double and more so the triple bunking amounted to harsh conditions. There was conflicting evidence as to whether he had to sleep on a mattress on the floor. I accept the evidence of Christopher Husbands, confirmed to some extent by custodial staff, that he experienced overflowed toilets as well as inability to flush toilets. This constituted part of the harsh conditions that I find existed, especially at the Don Jail.

[169] Christopher Husbands testified that he was subject to lockdowns of various lengths while at the Toronto East. During full lockdowns he did not have access to showers, phones, visits with family, friends and sometimes counsel. Some of these full lockdowns took place while Mr. Husbands was triple bunked with two other inmates. He referred to the stress and anxiety of those events.

[170] In R. v. Bedward, 2016 ONSC 939 at para. 22 I referred to the issue of lockdowns in the context of presentence custody as follows:

The fact that an inmate has experienced lockdowns certainly does not lead automatically to any additional mitigation of their ultimate sentence. However, a prolonged lockdown that is unrelated to the misconduct of the accused before the court may constitute harsh conditions that merit some mitigation of sentence. A lockdown is not the norm within the institution and it should not be viewed as such. When a lockdown occurs, the inmate is cut off from contact with the outside world, including family, friends and counsel.

[171] From time to time there will be entirely legitimate reasons for a lockdown (i.e. a weapons search after a violent incident). However, a large number of lockdowns related to staffing or other issues should not be viewed as “the norm”. I am satisfied that the number of lockdowns experienced by Christopher Husbands contributed to the harsh conditions of parts of his presentence custody.

Charter Application Related to Time Spent in Segregation

[172] Christopher Husbands spent 529 days in custody at the Don Jail between his arrest on June 4, 2012 and December 31, 2013 when he was transferred to Toronto East. All of that time was spent in administrative segregation. At the Toronto East he spent a further 140 days in administrative segregation. He testified that he did not request or wish to be held in segregation and conveyed that to staff whenever he could. There did not seem to be a defined process for him to challenge why he was being held that way, or for him to seek a review of his status. Christopher Husbands testified that he experienced increased stress, anxiety and depression as a result of his time in segregation.

[173] Section 12 of the Charter prohibits “any cruel and unusual treatment or punishment.” Such punishment must be “grossly disproportionate to the punishment that is appropriate.” R. v. Nur, 2015 SCC 15 at para. 39. The punishment must be more than “merely excessive” and must be “so excessive as to outrage standards of decency.” R. v. Boudreault, 2018 SCC 58 at para. 126.

[174] In Canadian Civil Liberties Association v. Canada (CCLA), 2019 ONCA 243 at paras. 68, 71-81 the court held that prolonged segregation is any period longer than 15 consecutive days. It causes foreseeable and expected harm to individuals. It is contrary to s. 12 of the Charter. CCLA at para. 19, R. v. Capay, 2019 ONSC 535 at para. 415. Prolonged segregation has been referred to as “inhumane.” R. v. Chan, 2019 ONSC 140 at para. 86. “The effect of prolonged segregation is thus grossly disproportionate treatment because it exposes inmates to a risk of serious and potentially permanent psychological harm.” CCLA at para. 99.

[175] I am satisfied that the defence have established a breach of s. 12 of the Charter based on the sheer length of time in segregation at the Don Jail and Toronto East. I make that finding notwithstanding that the conditions of his segregation were not as extreme as those in other cases and does not appear to have had the devastating impact that is referred to in Capay. Christopher Husbands had visits, phone calls, medical care, showers and at least limited access to yard facilities. He described stress, anxiety, and depression arising from his extensive isolation. He did show a degree of resilience. Dr. Gojer testified that his diagnosed mental disorder of PTSD has in fact abated somewhat while in custody. The fact that Christopher Husbands did not experience the extreme disintegration seen in Capay does not detract from the breach of his rights under the Charter. Counsel for Christopher Husbands does not seek the extreme remedy of a stay requested and granted in Capay.

[176] There may well be legitimate reasons to place prisoners in segregation for short, defined periods. However, there must also be a defined process that allows for input from the prisoner, communication of the reason to the prisoner and a review of the decision to segregate. There was evidence on this sentence hearing that custodial staff had concern for the safety of Christopher Husbands in the general population. There was some merit in that concern based on the high-profile nature of the case and the concern that other prisoners may have a motive to harm Christopher Husbands. That legitimate concern cannot justify a protracted relegation to segregation with little or no process for Christopher Husbands to be heard on the issue and challenge that decision. The lack of procedural fairness related to his segregation status in this case amounted to a violation of his rights under s. 7 of the Charter.

[177] In light of my findings of breaches under ss. 12 and 7 of the Charter it is unnecessary to deal with s. 9. The remedy for the breaches I have found will be linked to my findings related to harsh conditions apart from segregation.

Credit for Presentence Custody

[178] Christopher Husbands has been in custody for approximately 7.5 years. In considering what credit should be applied I have deducted 9 months related to the 12 month sentence he received for sexual assault while awaiting trial on these matters. That leaves approximately 6.75 years. Based on the Summers credit that amounts to 10 years of presentence custody. This will apply to the fixed term sentences that will be part of the final result of this sentencing process.

[179] In terms of the Duncan credit related to harsh conditions and the Charter breaches related to the time spent in administrative segregation I will resort to the remnant of the order I would otherwise have made pursuant to s. 743.6(1) of the Criminal Code. That order would have delayed an application for full parole until June 4, 2022 at the earliest. I will decline to make that order related to these two issues of presentence custody. In my view this is a very concrete and appropriate recognition of both the harsh presentence conditions and a remedy for the breaches of the Charter.

Impact of Presentence Custody on a Life Sentence

[180] Counsel for the Crown and defence were not able to locate any prior judicial rulings where credit for presentence custody reduced what would otherwise be a life sentence. Likewise, counsel were unable to find any cases where Charter breaches took a matter out from under a life sentence to a fixed term sentence. It seems safe to assume that in those cases where life sentences were imposed for manslaughter the accused had accumulated pretrial custody, often extensive in length. Those cases involved higher moral culpability and most involved accused who had extensive related criminal records. They were not likely good candidates for judicial interim release.

[181] An analogous situation arises in applications pursuant to part XXIV of the Criminal Code related to dangerous or long term offenders. The accused invariably has accumulated significant time in custody before a ruling. If the court rules there should be a determinate sentence there will be a credit for time served. If the court rules that there will be an indeterminate sentence the time served will not reduce that indeterminate sentence going forward.

Ancillary Orders

[182] Pursuant to s. 487.051 of the Criminal Code there will be an order for DNA samples since all of the counts relate to primary designated offences pursuant to s. 487.04 of the Criminal Code.

[183] Pursuant to s. 109 of the Criminal Code there will be an order for a lifetime weapons prohibition.

[184] Pursuant to s. 743.21 of the Criminal Code there will be an order that Christopher Husbands not communicate directly or indirectly with any of the victims named on the indictment, or members of their family during the custodial period of his sentence. This non-communication order will also include the following:

• The former spouse of Christopher Husbands whose identity and location is subject to a publication ban.

• Ahmed Nuri and his family.

• Robert Cada and his family.

• Danika Morgan and her family.

Balancing the Factors

[185] On sentencing the court must consider and balance the aggravating and mitigating factors. In this case the mitigating factors are significantly if not overwhelmingly outweighed by the aggravating factors and the need to reflect general deterrence and denunciation.

Concurrent Sentence for Counts 3 - 9 Inclusive

[186] In light of the sentences I will impose on counts 1 and 2 the sentences on counts 3 - 9 inclusive will be concurrent to those sentences and concurrent to each other.

Result

[187] The sentences will be as follows:

Count 1 Life imprisonment

Count 2 Life imprisonment

Count 3 10 years

Count 4 14 years

Count 5 10 years

Count 6 10 years

Count 7 10 years

Count 8 10 years

Count 9 10 years

[188] The fixed term sentences on counts 3 - 9 inclusive are a total of 14 years less the equivalent of 10 years of presentence custody. Thus on those counts a total of 4 years going forward concurrent with the two life sentences on counts 1 and 2.

B.P. O’MARRA J.

Released: November 29, 2019

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

DATE: 20191129

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER HUSBANDS

REASONS FOR SENTENCE

B.P. O’Marra J.

Released: November 29, 2019