It takes five judges to exonerate officer in shooting
Death of suspect during altercation ruled accidental after numerous hearings
Five different Ontario judges have now looked upon the charges against Toronto Police Const. David Cavanagh and found them deeply wanting.
As one of them said, there wasn’t “a scintilla of support” for the notion that the shooting of Eric Osawe was “anything other than an accident.”
To begin at the beginning, the 26-year-old Osawe died Sept. 29, 2010, in his westend apartment shortly after members of the Toronto Emergency Task Force battered down the door.
The ETF had a search warrant allowing them to do this, and it, as one judge later said, “was grounded in an excellent credible basis for the belief that Mr. Osawe traded in cocaine and handguns” and enjoyed a reputation “as an armed drug and firearms trader.”
To make this part of the long story short, Osawe was lying down on his bed when the police entered, ignored their commands to show his hands and get to the floor, and was soon taken to the floor by Cavanagh — all of this routine for someone believed to be armed.
Osawe was forced onto his stomach; he struggled (until the moment of his death, one judge noted), and in the ensuing tumble of arms and legs, he was killed by a single bul- let fired by Cavanagh.
The shooting was investigated by the province’s Special Investigations Unit, the independent agency which probes serious incidents involving police and which was then headed by Ian Scott.
On Nov. 30 that year, Cavanagh was charged with manslaughter. But 14 months later, in February of 2012, the charge was upgraded to second-degree murder. The change was contained in an SIU press release which said only that it was done after consultation with the Crown law office.
It was a shocker, because a murder charge requires intention to kill.
In a front-page story in the Toronto Star the day after, Julian Falconer, lawyer for Osawe’s family, noted that the young man had been shot in the back and pronounced the day as historic “in terms of police accountability.”
That Osawe had been shot in the back wasn’t news. Everyone who had needed to know knew that long ago, particularly the prosecutors.
Prosecutors also knew the explanation: Cavanagh’s MP5 submachine-gun, which he’d been carrying in a sling attached to his load-bearing vest, had gone off accidentally. That was why, after the gun went off, he had looked so surprised.
Falconer said he had seen the file and that he believed the evidence warranted a charge of second-degree.
The preliminary hearing was held that fall, in October of 2012. It lasted 15 days.
The purpose of the prelim in the Canadian justice system is, as one of the judges wrote, “to filter out cases that have little or no evidentiary merit and to protect the accused from needless exposure to a public trial if there is insufficient evidence of guilt to warrant it.”
The threshold for committal to trial is low — if there is any evidence upon which a reasonable jury properly instructed could convict, then trial it is.
In this case, the preliminary did just that — it filtered out the case against Cavanagh because, in effect, there was no case.
Ontario Court Justice Michael Block presided.
He flatly rejected the Crown theories of the case — these were complicated, if not fanciful, and relied not upon evidence but inferences.
He found the police had not inflated Osawe’s potential dangerousness. Previously, he had been convicted of a robbery involving a knifepoint home invasion involving a woman and child; he’d been convicted of assault and used a firearm to steal a cellphone.
Judge Block found the Crown had ignored the common-sense explanation — the shooting had been a terrible accident — captured in the aphorism known as Occam’s razor: The simplest explanation is usually the correct one.
He found there was no evidence that could lead a jury to infer Osawe’s shooting had been deliberate, or even that Cavanagh had been careless. He discharged the officer on the second-degree murder and on manslaughter.
The matter next went to Superior Court Judge Michael Quigley; the Crown was seeking an order of certiorari quashing Block’s discharge.
But Quigley too found Osawe’s death “resulted from a tragic but accidental confluence of circumstances that occurred in a high-pressure and high-risk situation within seconds of the police officers entering his apartment.” He found Block had made no errors.
At the hearing before him last June, Crown l awyers “acknowledged … the shooting was accidental,” but now wanted to revert to the original Crown position — that Cavanagh should be charged with manslaughter, based on his alleged carelessness or negligence in how he had carried his weapon that day.
Problem was, all the evidence, and all the witnesses who testified at the preliminary hearing, “said the exact opposite,” Quigley said. It was the expected practice that ETF officers should carry their weapons in a sling, even while using both hands to subdue a suspect, just as Cavanagh had done. “…the shooting was entirely unintentional and indeed totally accidental,” Quigley concluded.
He characterized Cavanagh’s conduct as “beyond reproach.” He dismissed the application.
The Crown then went to the appeal court, where three members — judges Marc Rosenberg, Eleanore Cronk and Russell Juriansz — were asked to review the decision of the reviewer, Quigley, and in four short pages found he’d made no error. They dismissed the appeal.
As Falconer reminded me, there’s a difference between having reasonable and probable grounds to lay a charge, and meeting the test of committal for trial. He is quite right. Yet something seems off about how dogged, if somewhat opaque, this prosecution was — from manslaughter to murder then back to manslaughter. It’s as though if they couldn’t make up their minds quite how, somehow, they were going to make an example of this fellow Cavanagh.
And in a case that was all about holding the police accountable, how interesting it is that no one ever answers for the decisions of the Crown.