Crown appeals murder acquittals in Eaton Centre mass shooting, asks for third trial
|Toronto Star 22 Mar 2019 at 11:11|
Ontario’s Attorney General is appealing 2012 Eaton Centre shooter Christopher Husbands’ acquittal on two counts of second-degree murder after a jury last month following a second trial.
The Crown alleges the trial judge, Superior Court Justice Brian O’Marra, made at least four mistakes in law when deciding what evidence jurors could and could not hear.
A still from surveillance video of the 2012 mass shooting shows people scrambling for cover as Christopher Husbands opens fire. (ONTARIO SUPERIOR COURT EXHIBIT)
The trial judge erred in law by barring the Crown from calling three prosecution witnesses to testify — their accounts were instead included in an agreed statement of facts — and by excluding the evidence of one conviction on Husbands’ record, the notice of appeal filed Thursday says.
The excluded witnesses were Connor Stevenson, a 13-year-old who was shot in the head but survived , and his mother and sister who were with him in the food court.
O’Marra ruled that their in-person testimony would unfairly prejudice the jury.
O’Marra also erred in excluding eyewitness evidence that Husbands was “engaged in a targeted shooting,” and in keeping from the jury that he was on bail at the time of the mass shooting, the notice states.
Jury finds Christopher Husbands guilty of two counts of manslaughter in Eaton Centre mass shooting
Additionally, the Crown is leaving the door open to “further and other grounds” that Ontario’s highest court might permit.
“The relief sought is that the appeal be allowed, the acquittal be set aside and a new trial be ordered,” reads the notice filed with the Ontario Court of Appeal.
The 89-day trial ended Feb. 19 when jurors delivered their verdicts.
Husbands was served with the notice of appeal at the Toronto East Detention Centre where he is awaiting sentencing next month.
Husbands’ lawyer, Dirk Derstine, said Friday that given the “great deal of emotion and consternation within some sections of the public,” he is not surprised the Crown “is doing everything they can within their legal rights to pursue whatever avenues they have.”
Derstine added he expects the trial judge’s rulings will be upheld.
“Justice O’Marra carefully considered every one of the grounds of appeal and we are confident that every one of his decisions on these points will be unassailable.”
Husbands was found guilty of two counts of manslaughter in the shooting at Toronto’s Eaton Centre that left two dead, injured several others and sparked a panic at the downtown mall.
The jury also found Husbands guilty of five counts of aggravated assault, criminal negligence through the use of a firearm and reckless discharge of a firearm.
Husbands was found guilty of two counts of second-degree murder after the first trial in 2014 but the convictions were overturned by the Court of Appeal and a new trial ordered because the judge made an error in rejecting a defence request for a specific method of selecting jurors.
Husbands opened fire in the mall’s food court at 6:22 p.m. on June 2, 2012, in the direction of a group of men including Nixon and Nisan Nirmalendran — brothers whom Husbands testified were part of a group who more than 20 times three months earlier.
Crown and defence experts agreed Husbands had post-traumatic stress disorder stemming from the attack but disagreed on the severity of his diagnosis.