Christopher Husbands arrives at Old City Hall courts in a police squad car on June, 4 2012.Fred Lum/The Globe and Mail
A man who was found guilty of second-degree murder in a daytime shooting at Toronto's landmark Eaton Centre mall was granted a new trial Friday after a judge found the jury that convicted him was improperly selected.
The Court of Appeal for Ontario overturned Christopher Husbands' convictions, saying the trial judge made an irreparable mistake by overruling a defence request regarding the method of jury selection.
As a result, the three-member appeal panel said, the jury was improperly constituted and the verdict cannot stand.
"In accordance with the current state of the law ... what occurred here cannot be salvaged," Justice David Watt wrote on behalf of the panel.
The June 2012 shooting at the Eaton Centre's crowded food court sparked mayhem in the mall and sent hordes of panicked shoppers running for the exits.
Husbands' appeal focused largely on the manner in which jurors were chosen.
As part of the selection process, prospective jurors may be questioned as to whether they believe they can remain impartial. Two people from the jury pool take on the role of "triers," meaning they weigh the answer and determine whether there is sign of bias.
Lawyers for both the Crown and the defence then decide whether to allow the person on the jury.
Each newly appointed juror replaces one of the two triers so that the responsibility is shared, a process called "rotating triers."
At the request of the accused, the court can appoint two people who will assess all the prospective juror responses. These are called "static triers" and do not get to serve on the jury.
Watt said Husbands' lawyers made it clear they wanted rotating triers but the judge, Superior Court Justice Eugene Ewaschuk, imposed static triers.
"Expressly and repeatedly, counsel wanted rotating triers. Yet the trial judge forged ahead, despite the entreaties of defence counsel, without any inquiries of the trial Crown about her position and seemingly oblivious to the confining language of the enabling legislation," Watt wrote.
At least one other case presided by Ewaschuk has seen its verdict overturned on appeal over the same issue.
Lawyer Dirk Derstine, who represents Husbands, said Friday's decision was not surprising.
"There's been a lot of cases which dealt with similar situations involving this judge which came to the same conclusion," Derstine said. "He had a very real belief that what he was doing was legal and proper and the Court of Appeal has found on a number of occasions that it was not correct."
It could take more than a year before a new trial for Husbands gets underway, he said, noting that his client is "looking forward to getting a fair trial this time."
Husbands was acquitted more than two years ago of first-degree murder but was found guilty of two counts of second-degree murder in the deaths of Nixon Nirmalendran, 22, and Ahmed Hassan, 24.
He was also found guilty of five counts of aggravated assault and one count of criminal negligence causing bodily harm.
Husbands, whose lawyers had put forward a defence of not criminally responsible due to post-traumatic stress disorder, was sentenced to life in prison with no chance of parole for 30 years.
Since the first-degree murder acquittal was not challenged, Husbands' new trial will be on charges of second-degree murder, as well as aggravated assault and criminal negligence causing bodily harm.