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Christopher Husbands arrives at Old City Hall courts in a police squad car on June, 4 2012.

Fred Lum/Fred Lum/The Globe and Mail

Lawyers for Christopher Husbands are seeking to have his murder convictions tossed out because they believe the judge made the same legal error during jury selection that recently led to a successful appeal in another case.

Mr. Husbands, 26, was convicted of two counts of second-degree murder and several lesser charges in the shooting of two men in June, 2012, in the food court of the Eaton Centre in downtown Toronto. Five bystanders were injured, including a 13-year-old boy.

Superior Court Justice Eugene Ewaschuk imposed a mandatory life sentence last year and determined that Mr. Husbands must serve at least 30 years in prison before he can apply for parole.

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The alleged legal error, which will be central to the appeal Mr. Husbands's legal team is preparing, has to do with the way the jury was selected.

As part of the process of jury selection, prospective jurors are often asked whether, knowing the alleged crime or the background of the offender, they feel they could be impartial. After hearing the answer to this, which is known as the "challenge for cause" question, two other people from the jury pool confer and determine whether bias exists. Then the Crown and defence can select or reject the potential juror.

The two people who determine impartiality are referred to as "triers." Since the late-19th century, the practice in Canada has been for one of the triers to be replaced each time a juror is selected.

Eight years ago, changes were made to permit the same two people to assess the answer to the challenge-for-cause question for every potential juror if a formal request to do this was made by the defence. The people are called "static triers."

Dirk Derstine, the lawyer for Mr. Husbands, said in an interview that he indicated to Judge Ewaschuk when jury selection began for the trial in the fall of 2014 that the defence wanted to follow the standard practice. "I told him, I don't want static triers. But he did it anyway," Mr. Derstine said. The rationale for moving one trier on each time a selection is made is to prevent any two people from having a disproportionate impact on jury selection.

Last fall, murder convictions for Richard Sheridan and Chad Noureddine (who were co-accused) were quashed and a new trial ordered by the Court of Appeal because the judge ordered static triers over the objection of the defence. Justice Ewaschuk presided over that case as well.

"Same judge. Same issue," Mr. Derstine said. "There is no discernible difference," in terms of the appeal ground, he stated.

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In 2011, the British Columbia Court of Appeal ordered a new trial in a case involving the murder of an 85-year-old woman over the same jury-selection issue. Mr. Derstine said he brought that decision to the attention of Justice Ewaschuck at the beginning of Mr. Husbands's trial.

The Crown did not seek leave to appeal the Noureddine decision to the Supreme Court by the Jan. 12 deadline, so the Court of Appeal's ruling on this issue is now binding in the province.

In that decision, the court said the jury selection error was significant. "This court was improperly constituted to try the appellants," Justice David Doherty wrote. The reason given by Justice Ewaschuk for his decision was his "inherent jurisdiction" to decide the method of jury selection. "That authority does not, however, extend to orders that contradict the requirements of the Criminal Code," Justice Doherty wrote.

Static triers were also used to pick a jury in Toronto last year in the trial of Emmanuel Owusu-Ansah, who was convicted of second-degree murder in the death of his ex-girlfriend. Defence lawyer Scott Reid said he raised the issue at the time about whether this process was permissible. Justice Ewaschuk responded that this was his preferred method of jury selection, Mr. Reid recounted. The lawyer said he could not comment about the specifics of Mr. Owusu-Ansah's appeal, which has been filed as a notice, but not yet been heard.

Justice Ewaschuk, who declined to comment through his formal assistant, retired last year after more than 30 years on the bench, although appeals of cases he presided over are still working through the system. Several of his verdicts have been quashed in appeals because of legal errors.

Michael Lacy, who represented Mr. Sheridan in his appeal, said the judge probably presided over more murder trials than any other jurist in Canada, yet he still ignored a mandatory provision in the Criminal Code. "Judges are entrusted to carry out the laws of this country, not make up their own mind on the fly as a matter of judicial expediency or in the misguided belief they are untouchable on appeal," Mr. Lacy said.

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The appeal filed by Mr. Husbands is expected to be heard in early in 2017. The Ministry of the Attorney-General did not respond to a request for comment.

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