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TORONTO STAR

Jody Wilson-Raybould will be allowed to testify before justice committee (mar., 19 févr. 2019)
OTTAWA—Jody Wilson-Raybould joined her former cabinet colleagues at a meeting Tuesday — and later on the front benches of the House of Commons — just a day after Prime Minister Justin Trudeau’s top aide resigned after denying allegations he or anyone in the Prime Minister’s Office pressured the one-time justice minister over a criminal case. Wilson-Raybould largely maintained her public silence since quitting cabinet last week, saying only that she is still consulting her lawyer about what she can say publicly. She will have a chance to tell her at least part of her story in the coming days after Liberal MPs dropped their opposition to having Wilson-Raybould testify before the justice committee. “As I think people can appreciate or should appreciate, the rules and laws around privilege, around confidentiality, around my responsibility as a Member of Parliament, my ethical and professional responsibilities as a lawyer, are layered and incredibly complicated,” she said following the cabinet meeting, “so I’m still working with my lawyer.” Asked whether she was pressured by the Prime Minister’s Office, as the Globe and Mail reported based on unnamed sources, Wilson-Raybould said only that she was “still working with my lawyer.” But she was adamant that she remains a member of her party’s caucus, stating, “I am a Liberal Member of Parliament.” Read more: Opinion | Susan Delacourt: Here’s the downside of concentrating power in the Prime Minister’s Office Why Jody Wilson-Raybould still isn’t talking about SNC-Lavalin Why now? Gerald Butts’ departure fuels speculation In a strange display of nothing-to-see-here-folks, Wilson-Raybould sat in her old minister’s chair during Question Period — the same one she last occupied as veterans affairs minister. Her appearance in the Commons came in the midst of a crisis for the government, which faces a looming vote for a judicial inquiry into allegations of political interference in the prosecution of SNC-Lavalin. She sat, listened and texted as Conservatives and NDP members attacked the government, saying the resignation of Trudeau’s principal secretary Gerald Butts on Monday proves the need for a public inquiry. Butts denied any wrongdoing, but said he was leaving the PMO because he didn’t want to be a distraction from the government’s work, and would be freer to defend himself and the PMO against allegations that anyone there had pressured Wilson-Raybould. No one on the government’s side would elaborate on Wilson-Raybould’s presence at Tuesday’s cabinet meeting. Trudeau told reporters that she had asked to attend, but said their discussions are covered by cabinet confidence, a line echoed by several of his ministers. Wilson-Raybould later told a CBC camera crew that the cabinet wanted to hear from her. Conservative Leader Andrew Scheer labelled the gathering a “damage-control meeting.” Scheer said questions are raised by the fact that the Liberal-dominated justice committee, which met behind closed doors Tuesday afternoon to discuss possibly expanding its probe, was suddenly willing to call Wilson-Raybould to testify. “I think it’s very clear that the Liberal Party and Justin Trudeau have been engaged in damage control from the moment these allegations were raised,” he said. Scheer said the sudden turn of events showed a public inquiry is needed to get to the bottom of allegations that first surfaced Feb. 7 in a Globe and Mail report of political interference in the prosecution of SNC-Lavalin. He dismissed suggestions Wilson-Raybould’s reappearance in Liberal ranks proves that nothing untoward happened, adding if the prime minister really wanted to restore Canadians’ confidence, “he would not be stonewalling us, he would not be directing his MPs to cover up at committee, he would not be pretending his principal secretary did nothing wrong and yet also accepting his resignation.” Wilson-Raybould’s invitation to appear before the justice committee came from Liberal MP Iqra Khalid, who tweeted about it soon after the surprise cabinet appearance. Although Wilson-Raybould told CBC that she respects the committee and would appear if asked, she noted that she is “continuing to discuss and talk with my counsel about what I can and cannot say. That too would apply at the justice committee were I to appear.” The committee finalized its witness list, which now also includes several legal academics, Justice Minister David Lametti, Clerk of the Privy Council Michael Wernick and deputy justice minister Nathalie Drouin. But the Liberal majority again shut down opposition efforts to summon Trudeau’s senior aides, such as Butts and Mathieu Bouchard. “What happened there was a travesty,” NDP MP Murray Rankin said after the closed-door meeting wrapped up. “The principal secretary to the prime minister of Canada resigned and we’re not allowed to hear from him,” Rankin said. “Doesn’t that strike you as odd?” Read more: Editorial | Let Jody Wilson-Raybould tell her own story An opposition motion to have solicitor-client privilege waived to allow Wilson-Raybould to speak freely at the committee also did not pass, another sore point for Conservatives. “We want to have more of a discussion than ‘I can’t speak to that. I can’t speak to that. I’m bound by solicitor-client privilege,’” said Conservative MP Lisa Raitt. Meanwhile, a Conservative senator tabled a motion to hold a parallel probe in the Senate. Wilson-Raybould’s arrival to take her seat among the Liberal ranks in the Commons clearly boosted the mood of several of her colleagues, even as several stressed their respect for Butts. Treasury Board President Jane Philpott appeared buoyed, saying the treatment “that was received by people by anonymous sources was offensive and everyone deserves respect.” Fisheries Minister Jonathan Wilkinson, a fellow MP from B.C., said Wilson-Raybould “remains my friend and she has her own reasons for doing things.” Asked how she is doing, Wilkinson said, “I think Jody is a very thoughtful and strong person and Jody makes decisions based on what Jody thinks is the right thing to do for herself and I think that she’s doing fine in that context.” When asked if that means she is not a victim in the whole affair, Wilkinson said, “I don’t think that Jody would ever think herself a victim. “I think Jody is somebody who speaks her mind and is very comfortable doing that and I thing that is one of the things that we all like about Jody.” Foreign Affairs Minister Chrystia Freeland, who along with Butts and Trudeau’s chief of staff Katie Telford had led the talks to renegotiate NAFTA, appeared earlier in the day to be reeling at the news of Butts’s sudden departure. “It’s obviously a sad moment for me and his many friends and people who really admired the tremendous work he’s done for Canada,” said Freeland. “Having said that, you know, our work goes on, as Gerry said in his own letter.” Crown-Indigenous Relations Minister Carolyn Bennett said that “on the ground” Indigenous communities had expressed concern over Wilson-Raybould’s departure from cabinet. “There’s no question that there’s great disappointment with the resignation. There’s no bad seat at the cabinet table so that is I think sadness that everybody feels. Absolutely, everybody just wants us to keep going forward.” Butts was not specifically named in the Feb. 7 Globe and Mail story that first reported claims by unnamed sources that Wilson-Raybould was shuffled out of her job as justice minister because she resisted pressure by unidentified senior PMO officials to cut a deal that would have avoided criminal liability for Quebec-based engineering giant SNC-Lavalin in a fraud and bribery case. The entire Liberal caucus will soon face a bigger test, possibly as early as Wednesday, of its confidence in the government’s handling of the affair. New Democratic Party ethics critic Charlie Angus tabled a motion Tuesday that will force the Liberal caucus to vote on whether the entire affair should be examined publicly by a federally appointed judge, much as the sponsorship scandal in the early 2000s was. The NDP motion reads that the House of Commons “call on the Prime Minister to waive solicitor-client privilege for the former Attorney General with respect to allegations of interference in the prosecution of SNC-Lavalin; and urge the government to launch a public inquiry, under the Inquiries Act, in order to provide Canadians with the transparency and accountability promised by the Liberals in the 2015 election campaign.” In introducing the motion as the cabinet met in West Block, Angus said the SNC-Lavalin allegations of “corruption” and “cronyism” have led to a “corrosion of public confidence.” “We are here to restore public confidence,” he said. Scheer told the Commons that his MPs would support the NDP motion. In a letter he released Monday, Butts “categorically denied” allegations in the Globe story that anyone in the PMO pressured Wilson-Raybould to cut a deal with SNC-Lavalin. Trudeau and Butts have conceded that they each spoke personally to Wilson-Raybould about the file. Trudeau says he told his justice minister the decision whether to direct the prosecution was “hers alone” when he spoke to her on Sept. 17. The public prosecutor rejected a deferred prosecution agreement for SNC-Lavalin on Oct. 9. Butts spoke to her on Dec. 5. The PMO says Wilson-Raybould raised the subject with Butts, and that he told her to talk to Wernick. Wernick heads the privy council, the central co-ordinating department of the entire government, and is the top public servant who serves as Trudeau’s deputy minister. Wernick declined the Star’s request to say what he told Wilson-Raybould. Families, Children and Social Development Minister Jean-Yves Duclos indicated he did not believe there was any wrongdoing. Asked if Wilson-Raybould should be allowed to speak, Duclos said, “Listen, for me, it’s something that seems clear enough right now, that the prime minister has said since the beginning, that there was no pressure or direction to follow on this file. “The government must respect the independence of the judicial proceedings. It’s always been the policy that we have followed up to now.” Tonda MacCharles is an Ottawa-based reporter covering federal politics. Follow her on Twitter: @tondamaccBruce Campion-Smith is an Ottawa-based reporter covering federal politics. Follow him on Twitter: @yowflier
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Ford government unveils plan to ‘fix’ police oversight, limit SIU mandate (Tue, 19 Feb 2019)
After vowing to “fix” policing laws in the province, Doug Ford’s Progressive Conservative government proposed new legislation Tuesday that would limit the mandate of the police watchdog, impose time-limits on its probes and roll back efforts to promote independent investigations into public complaints about officers. The move comes less than a year after the previous Liberal government passed Bill 175 — a massive overhaul of policing that strengthened police oversight — and will “restore respect for police,” community safety minister Sylvia Jones said at a news conference in Oakville. “Make no mistake, the Liberals’ Bill 175 was, quite frankly, the most anti-police legislation in Canadian history. It was a disaster,” Jones said, before later introducing the 350-page legislation at Queen’s Park, dubbed the Comprehensive Ontario Police Services Act. While critics decried a weakening of police accountability — former Attorney General Michael Bryant said the proposed legislation would “gut” police oversight — others noted the new legislation still draws heavily from the omnibus Liberal police laws, despite the PC “rhetoric.” “On first reading, its bark may be worse than its bite. It is more a rebranding than a total gut of the Liberal legislation,” said Kent Roach, a University of Toronto law professor and policing expert. The proposed legislation still acts on some of the key recommendations made by Ontario Court of Appeal judge Michael Tulloch in a recent sweeping review of police oversight, many of which were already present in Bill 175. That includes that Ontario’s police watchdog, the Special Investigations Unit, automatically be called in every time a police officer fires their gun at a person, as well as enshrining into law the expectation that the SIU director release detailed reports on investigations when no charges are laid. “This has become SIU’s practice since the Tulloch report, and in my opinion, this is important to help promote transparency of investigations to the public,” said Kate Puddister, a University of Guelph assistant professor who focuses on police accountability. Read more: Police carding should be banned in Ontario, independent review says Policing in Ontario takes ‘large step forward’ with sweeping new law The new legislation proposes changes to both the SIU — which probes deaths, serious injuries and allegations of sexual assault — and to Ontario’s police complaints watchdog, the Office of the Independent Police Review Director. Citing lengthy investigations that “waste time and energy,” Attorney General Caroline Mulroney announced lowered expectations around SIU notification — an issue that has long been contentious between police services and the watchdog. Currently, police services are expected to over-notify, meaning they call in the SIU when it’s reasonable their mandate could be invoked, including deaths and serious injuries incurred in the presence of police, such as a heart attack or a suicide. This means the SIU, not the police service, makes the decision on whether to launch an investigation. Mulroney said the proposed new legislation would remove the expectation that the SIU be called in for deaths such as a suicide, unless the police chief “reasonably believes” that an officer’s conduct may have been a contributing factor in the incident. Notification of the SIU would still be mandatory in cases of death or serious injury caused by police use of force, incurred in detention, or as the result of a car chase, as well as for allegations of sexual assault. Mulroney also said the proposed law would put a 120-day time limit on the watchdog’s probes, with the expectation that the SIU provide justification if it couldn’t wrap up probes in time. Ian Scott, a former SIU director, said in an interview Tuesday that he worries about sending the message that police don’t have to call in the watchdog — “if they think they don’t have to call, they won’t,” he said. “Clearly, the way they’ve worded it, will give the discretion to the police to decide when to call the SIU, and that in my view is not desirable,” Scott said, adding that police should ideally subscribe to the thinking of “if in doubt, call.” According to the SIU’s most recent annual report, in 2017 the watchdog closed 367 cases, with the average number of each investigation taking 167 days. In 2016, when there were 296 cases, the average length of each probe was 111 days. There are, however, some cases that stretch out for months, including the investigation into the death of Danforth shooter Faisal Hussain, who killed two and injured 13 others in July’s mass shooting. Hussain exchanged gunfire with two Toronto police officers but died by suicide; the SIU investigation lasted six months. Jeff McGuire, the executive director of the Ontario Association of Chiefs of Police, said the time limits would shorten the “unfathomable” length of time for SIU investigations. “The trauma and victimization that officers underwent for responding to 911 calls and trying to do what was right was not fair,” he said. Monica Hudon, spokesperson for the SIU, said the watchdog “will abide by whatever legislation is in place, as we have always done.” Asked whether additional resources will be required to meet the 120-day time limit, Hudon said it was too early to speculate. The proposed new police laws would also make changes to the OIPRD, the police complaints body, which would become the Law Enforcement Complaints Agency. Part of its mandate would be to then assign the investigation of the complaints back to a police service — possibly the employer of the officer the complaint relates to — or an agency investigator. That’s a departure from the police complaints system created under the previous Bill 175, which had required that the province’s police complaint watchdog become fully independent within five years. That meant it would no longer refer any complaints back to the police service where the complaint originated. Liberal MPP Nathalie Des Rosiers (Ottawa-Vanier), a lawyer and former law dean at the University of Ottawa, said she was concerned with the change to the complaint mechanism. “It is concerning to me that this office is being folded into a new body. We need to ensure that a robust complaint mechanism is maintained in Ontario, so that if an individual feels their interaction with a police officer wasn’t acceptable, they can have confidence that that type of behaviour doesn’t happen again.” Roach said that although the complaints agency won’t investigate all complaints it can still decide what complaints to investigate and consider appeals. “This is not the type of gutting of police complaints that was done by the Harris government despite the rhetoric of the Ford government’s announcement,” Roach said. Another change proposed in the new law is a lowering of the penalties imposed on officers who fail to co-operate with SIU investigations, setting the fines at $5,000 for a first offence and $10,000 for a subsequent offence. Bill 175 had set the fines at $25,000 for a first offence, $50,000 for the second. Puddister said that for many, the proposed legislation “will not go nearly far enough,” noting that it has, for example, removed the ability for the SIU to lay criminal charges outside of its mandate, a feature that had been in the Liberals’ Bill 175. “Many believe that SIU’s exclusive criminal law mandate is both too narrow and the bar for substantiating a criminal charge is too high,” she said. In a statement, Police Association of Ontario said it welcomed the announcement, saying front-line personnel are “are optimistic that this act will restore fairness and respect for professional policing in the province, make oversight more effective, and improve governance, training, and transparency for the profession.” With files from Robert Benzie Wendy Gillis is a Toronto-based reporter covering crime and policing. Reach her by email at wgillis@thestar.ca or follow her on Twitter: @wendygillis Rob Ferguson is a Toronto-based reporter covering Ontario politics. Follow him on Twitter: @robferguson1
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Doctors get new contract with province after 4-year battle (Wed, 20 Feb 2019)
After a four-plus year battle, the provincial government and the Ontario Medical Association finally have a new fee contract — one that does not include a cap on how much doctors can be paid, but requires the elimination of $460-million worth of “inappropriate” medical services. A three-member board of arbitration released its decision in the dispute on Tuesday. The dispute was referred to binding arbitration in 2017, after the two sides were unable to reach a negotiated settlement. “It seems to us that at the centre of our mission in resolving the matters in dispute is (ensuring) a high-quality patient-centred sustainable publicly funded health-care system with fair and reasonable compensation for Ontario’s physicians,” wrote the board, chaired by arbitrator William Kaplan. At more than $12 billion, physician compensation accounts for about 22 per cent of the health ministry’s $56-billion budget, the decision notes. “Caution in increasing expenditures is obviously called for together with acknowledgement that fiscal resources are not infinite and that an increase in one area — for example, physician compensation — will have an impact in others,” it reads. The new four-year physicians services agreement is partially retroactive, running from April 1, 2017 to March 30, 2021. Read more: Schism within government on how to deal with the Ontario Medical Association puts premier and health minister at odds Opinion | Martin Regg Cohn: How Ontario’s doctors lost faith in Doug Ford — and each other Ontario’s doctors say contract talks have collapsed The board rejected the province’s request for a hard cap to be placed on the total amount physicians can bill the province annually. “If the ministry wishes to limit the insured physician services patients receive, it can readily do so. What it cannot do is achieve this outcome by requiring Ontario doctors to subsidize public services. That would be the direct result of the imposition of a hard cap,” the decision states. In making the case for a cap, the government had argued that Ontario doctors are working less and seeing fewer patients but billing more. The OMA, which represents 31,000 practising doctors, denied that its members deliberately provide inappropriate services to increase their income. But the board ordered that the two sides strike an “appropriateness working group” to eliminate or restrict inappropriate or overused physician services — $100 million worth in 2019-20 and another $360 million worth the following year. The decision notes that the Canadian Institute for Health Information and Choosing Wisely Canada estimate that as much as 30 per cent of medical services are unnecessary and inappropriate. It also cites a study which found that fewer than 4 per cent of Ontario’s 11,448 family doctors are responsible for ordering nearly 40 per cent of tests considered low value. The arbitration decision provides doctors with redress, eliminating most but not all of the fee cuts imposed by the province in recent years, effective this coming April. As well, it awards physicians with increases of 0.75 per cent for 2017; 1.25 per cent for 2018; 1 per cent for 2019; and 1 per cent for 2020. The release of the decision marks the completion of phase 1 of the arbitration process. Phase 2 will look at how the physicians services budget is to be divided up among different specialty groups, a controversial process known as “relativity.” An internal OMA report previously found that some specialties are underpaid and others overpaid. It called for adjustments to be made. In its decision, the arbitration board stated how it wants to see relativity addressed: “We would not be inclined as a board of arbitration to direct that the fees or compensation paid to some groups should be reduced, in order to increase the fees or compensation paid to other groups … Given the history over the past several years, we do not believe that this is a time for any further reductions to physician compensation.” The arbitration board also called for the creation of a working group to resolve a dispute over how much family doctors should make. In written statements, Health Minister Christine Elliott and OMA president Dr. Nadia Alam described the arbitration decision as workable and noted that neither side got everything it wanted. On social media, doctors had been expressing fear that the government would use the “notwithstanding” clause to get out of the arbitration requirements. Those fears were fuelled by an aborted move made by the government late last year to back out of arbitration. Theresa Boyle is a Toronto-based reporter covering health. Follow her on Twitter: @theresaboyle
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$140K-a-year EQAO job for failed PC candidate sparks criticism (Wed, 20 Feb 2019)
Failed Progressive Conservative candidate Cameron Montgomery has landed a $140,000-a-year job chairing the agency that administers province-wide standardized testing for students — a post for which his predecessor earned less than $4,000 last year. Montgomery’s appointment as chair of the board of directors at the Education Quality and Accountability Office (EQAO) marks the first time the position is a full-time job — a move that has drawn criticism. “It’s not a full-time job, and I don’t know how you make it into a full-time job,” said former NDP education minister Dave Cooke, who was a board member for 10 years, the last three as chair, before retiring in October. “If he’s there every day I don’t know what (Montgomery) is going to do.” Montgomery’s appointment by the Doug Ford government follows lengthy public consultations on how to improve education and comes at a time when the independent provincial agency says it’s in the process of modernizing to better meet the needs of students, parents and educators. As chair, Cooke earned a per diem of $225, which in 2018 amounted to $3,600. During one unusually busy year, with lots of meetings, he recalls earning more, but still less than $20,000. Cooke, who was one of the architects of the EQAO, established in 1996, wonders what Montgomery will do to warrant an annual salary of $140,000. The agency administers tests in Grades 3, 6, 9 and 10 to assess reading, writing and math skills to help identify curriculum areas that need attention. Its responsibilities include coming up with strategies to improve accountability and making recommendations to bolster the quality of public education. The agency’s daily operations are led by professional staff headed by a CEO, who reports to the board, which meets at least four times a year. The board is accountable, through its chair, to the minister of education and must maintain an arm’s-length relationship with the province. Read more: NDP Leader Andrea Horwath blasts Premier Doug Ford for cronyism in appointments Liberal MPP urges Ford to ‘slow down’ on appointments after McCallion and Taverner debacles EQAO testing needs overhaul, report to education minister says “EQAO is on a path to modernization that will touch every aspect of the agency — from assessments and reporting to research, engagement activities and business operations,” said Montgomery, a former assistant professor of education at University of Ottawa. “In the months ahead, I’ll be working with the government and EQAO’s board of directors to ensure the agency can better meet the needs of the province,” he said in a statement. The agency said Montgomery was unavailable for an interview Tuesday. Ministry of Education spokesperson Sandra Zeni described Montgomery as an “experienced educator” with “first-hand experience of best practices and challenges in Ontario’s English and French-language school systems.” “EQAO requires strategic leadership and significant governance expertise as it works to modernize its processes throughout a multi-year transformation period,” said Zeni, noting a full-time chair will “better protect the public interest and parent needs” and “bring higher levels of accountability and transparency” for taxpayers. “The full-time chair will act as a chief spokesperson for EQAO,” wrote Zeni in an email. “The ministry will work with the chair with a view to promoting high levels of student achievement, particularly in foundational math skills.” EQAO communications officer Sarah Beech said in an email that modernizing the agency will be complex. Beech said Montgomery “will work with the board of directors to create an ambitious strategic plan and he will work with the CEO to ensure its successful implementation.” In a news release about the announcement, the agency said it “welcomes feedback on its modernization and listened closely as perspectives were shared through the government’s consultation on education reform in the fall.” That’s when the province received 72,000 submissions from the public on various education issues. Cooke, a veteran politician who was an MPP from 1977 to 1997 and served as education minister in the Bob Rae government, said he’s “very concerned” the appointment of a full-time chair could lead to the perception of “political interference.” Being a full-time position “puts a whole different spin on it,” he said, adding “I haven’t been able to get my head around it because I don’t know what (Montgomery) is going to do.” “We’ve got a defeated Conservative candidate who is now going to chair EQAO and that, to me, is a concern (because) of what the perception of that might be,” said Cooke. “The only way the agency maintains its credibility is if it maintains the reality of being arm’s length from government and completely non-partisan.” In the last provincial election, Montgomery ran in the battleground riding of Ottawa-Orléans, which was the first stop Ford made during a pre-campaign trip to Ottawa. Liberal incumbent Marie-France Lalonde won the race by a slim margin. On Jan. 31, the province appointed Montgomery as EQAO chair for three years, but it was only publicized last week. Charles Pascal, a professor at the University of Toronto’s Ontario Institute for Studies in Education, said “creating a totally unnecessary high-salaried job to reward a failed PC crony is the worst kind of patronage.” “In the context of a government that has shown active disregard for public education, I worry that the appointee will earn his gravy by turning a non-partisan agency into a vehicle to further denigrate Ontario education,” said Pascal, a former deputy education minister and former chair of the EQAO board. In a media statement, NDP education critic Marit Stiles criticized the creation of the full-time $140,000 job. “Parents want to see every education dollar spent right in the classroom,” said Stiles. “Instead, Doug Ford is siphoning off cash to give to someone he trades favours with. That money is for children — not Ford’s insiders.” On Twitter, Chris Cowley, an executive member of the Ontario English Catholic Teachers Association, described Montgomery’s salary as “enough to buy 2,500 text books for Ontario students.” Isabel Teotonio is a Toronto-based reporter covering education. Follow her on Twitter: @Izzy74
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Rosie DiManno: Christopher Husbands had big smile after manslaughter convictions in Eaton Centre shooting, and it’s easy to see why (Wed, 20 Feb 2019)
Missing pieces. The then-13-year-old boy who survived a bullet to the head: He was not permitted to testify, as he had before. That the defendant had been out on bail, under house arrest for sexual assault, forbidden from being in possession of a firearm when he unleashed mayhem at the Eaton Centre food court: Jury didn’t heard that either. Or that at his first trial Christopher Husbands had been found guilty by another jury on two counts of second-degree murder — originally charged with first-degree — and received a life sentence with no parole eligibility for 30 years. Now, with Tuesday’s late afternoon verdict — on the jury’s sixth day of deliberations — Husbands, convicted for manslaughter times two and aggravated assault times five, could very well be released, at least theoretically, at any moment. “Depending on what the sentence is, that’s not impossible,” defence lawyer Dirk Derstine told reporters outside court afterwards.’’ The minimum sentence for manslaughter committed with a firearm is four to seven years. Husbands has been in custody for seven years. Little wonder then that the slim bespectacled 29-year-old turned around, after the judge had left the courtroom, and smiled from ear to ear. He got away with what many would call murder — not guilty on the two second-degree murder charges. Read more: Husbands guilty of two counts of manslaughter in Eaton Centre mass shooting Was the Eaton Centre gunman in a ‘dissociative state’? Clearly this jury had a difficult time coming to unanimous agreement on a slew of charges that also included reckless use of a firearm and criminal negligence causing bodily harm. Over the weekend, they had come back to court asking Justice Brian O’Marra for direction on when an accused could be found not criminally responsible. Ultimately they rejected that conclusion and somehow, quite shockingly, arrived at the far lesser option of manslaughter. “It’s a lot better than second degree murder,’’ Derstine said. “Listen, we put forward a defence about the capacity of Mr. Husbands to be able to form the intent necessary for murder and the jury accepted that. They had at least a doubt on that front. Would we have preferred a not criminally responsible verdict? Yes we would. But this is a long way different from conviction for an intentional act. “He was facing life in prison before and 30 years of non-parole eligibility. The maximum sentence he can receive now is life imprisonment with no chance of parole for seven years, although we’ll be asking for less than that.’’ There was never any doubt that Husbands was the shooter that June evening in 2012 at the always-busy downtown mall, pulling out a gun and blasting away. Ahmed Hassan was killed instantly. Nixon Nirmalendran dropped to the ground as Husbands then stood directly over him and, two-handed, continued to pump bullets into the victim. He died in hospital nine days later. Fourteen bullets fired. Five innocent bystanders struck in the barrage, including the boy, Connor Stevenson, who’s still apparently in a bad way. A seven-month pregnant woman who was knocked over during the chaos as people fled in panic and pandemonium, later giving birth prematurely. While Husbands made his way home and sat in front of the TV, watching reports about the shooting, wondering what had happened, which he allegedly could not remember. O’Marra granted the defence motion to exclude testimony from Stevenson this time around, when the retrial began last October. They also put forward three psychiatric/psychological experts — just one at the 2014 trial — who all agreed that Husbands had been suffering from Post Traumatic Stress Disorder when he took aim at Nirmalendran and Hassan. Two Crown experts concurred but with a crucial stipulation — that Husbands was not in a “dissociative state’’ while shooting. The prosecution had argued that, PTSD notwithstanding, Husbands had control over his actions. “This was not someone blindly shooting,’’ Crown lawyer John Cisario told court in his closing argument. “This was someone who was purposely aiming . . . He knew exactly what he was doing.’’ The first trial jury took just one day to convict on second degree murder. Two juries. Two different conclusions. Shocking, frankly. While this jury knew that it was a retrial, they were not told that the Court of Appeal ordered a new trial because of the original trial judge’s mistake. Superior Court Justice Eugene Ewaschuk, on the verge of mandatory retirement (age 75), committed an error of procedural technicality — imposing “static triers” during jury selection instead of allowing the defence request to use “rotating triers,’’ where two different people from the jury pool assess each prospective new juror. Husbands conceded that he was the shooter but pleaded not guilty. A huge win — reversal of fortune — for the defence, with all the same players in the courtroom cast, except for judge and jury. It must have been particularly crushing for lead Crown Mary Humphrey, whose lived with this case for seven years and watched her initial success come undone. Husbands had been at the mall with his then-girlfriend in 2012 when his Nirmalendran and Hassan walked by with a group of friends. That group included Nirmalendran’s younger brother Nisan. Husbands had grown up in Regent Park with the siblings. (Nisan was killed the following year in an unrelated shooting.) The defendant told both trials that the Nirmalendrans had been among a group that ambushed him outside another girlfriend’s apartment — for reasons he did not know — in February, 2012. He was pistol-whipped and stabbed 22 times and certainly believed he was going to be killed. Instead, after the four assailants scrammed, Husbands staggered out into the street, bleeding profusely and a motorist called 911. Husbands never told police investigating the attack that he recognized some of the assailants. Where they came from, you just don’t spill to the popo — the code of “the street.” This was the genesis of his PTSD in the life of a young man who’d grown up in Guyana with a crack-addicted mother who’d abandoned her three children, arriving in Toronto at age 11 when his father sent for him, embracing the guns and drugs culture of a street dealer. The shooting episode was triggered, court was told, after Husbands heard Nixon Nirmalendran tell the others: “Shoot him!’’ We’re not permitted, in Canada, to approach jurors even after a trial, ask them the why of their reasoning. But, in this instance, the manslaughter verdict can be distilled down to two legal tracks: Either they believed Husbands was provoked by the “Shoot him!’’ directive — there were no guns recovered from the victims — or they agreed that Husbands had diminished capacity at the time of the shooting. “There’s two ways that they can get there,’’ defence lawyer Stephanie DiGiuseppe explained. “One is through provocation, which means there was an act or insult by the deceased which caused him to lose control essentially. The other way, which is a little more complicated and closer to NCR, has to do with finding that his PTSD, in addition to other factors, caused him to react instinctively without forming the intent to kill.’’ In sentencing submissions — the date not yet set — the defence will “likely” focus on the second. The Crown, however, will be pursuing the maximum sentence available for all the guilty counts and will present victim impact statements, including from Connor Stevenson. Said Derstine: “Mental illness is something which is very little understood in our society right now. It’s very easy to look at this at first blush — and many people have looked at it that way — and said to themselves, we know everything there is to know about this. But I think that through five months of nuanced appreciation of the evidence, that we’ve actually come to a point where we understand a lot more about that than we might have seen at first blush.’’ Yes, it is very much to blush, this outcome. Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno
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