In 2015, the families of the two victims of the 2012 Eaton Centre shooting received some semblance of closure, when Christopher Husbands, the shooter, was sentenced to life in prison without the possibility of parole for 30 years.
Now however, their wounds are being reopened. Husbands is appealing the decision and is asking for a new trial.
Why? Husbands argues that his 2015 trial was prejudiced as a result of an improperly selected jury.
When a jury is being formed, prospective jurors are often questioned as to whether they believe that they can remain impartial. During this questioning, two members from the jury pool are tasked with weighing the person's response to the question in order to determine whether or not they see bias. They are referred to as a "trier." Though in the end, it is the lawyers for both sides who choose whether or not the person will sit on the jury.
If a person is appointed to the jury, they will then sit in as the "trier" so that the responsibility of pointing out bias (if there is any) is shared. This process is called "rotating triers."
If the accused chooses, there can be "static triers" who are two individuals appointed by the court to evaluate bias, and they do not serve on the jury at any time.
In the Husbands trial, static jurors were imposed, despite Husbands requesting rotating jurors. It is for this reason he argues his trial was unfair.
So will his appeal be successful? This of course remains to be seen, but a recent case stemming from the Court of Appeal may provide some insight.
In R v Noureddine, the court called for a new trial over the imposition of static jurors. According to the appeal court, the improper use of static triers rendered Noureddine's conviction voidable.
In Noureddine, the Crown conceded to the flaw in the jury selection process – using static triers during challenge for cause. This is different for the Husband's case, where Crown lawyers argue that the judge wasn't at all mistaken in choosing static jurors. They say that "any error here occasioned the appellant no prejudice or miscarriage of justice."
As the Noureddine decision is one from the highest court in Ontario, it is binding on all lower courts in the Province.
So it may be possible that Husbands is successful in his argument. Time will tell.
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