COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cavanagh, 2014 ONCA 251

DATE: 20140402

DOCKET: C57733

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

David Cavanagh

Respondent

Milan Rupic, for the appellant

Peter Brauti and Lawrence Gridin, for the respondent

Heard: March 25, 2014

On appeal from the judgment of Justice Michael G. Quigley of the Superior Court of Justice, dated September 12, 2013, dismissing the application for certiorari and mandamus to set aside the order of Justice Michael Block of the Ontario Court of Justice, dated March 1, 2013, discharging the respondent.

ENDORSEMENT

[1] The preliminary inquiry judge and the judge hearing the review application gave complete and lengthy reasons dealing with the case as it was presented to them. At the preliminary inquiry, the Crown’s position was that the respondent shot the deceased as he was reaching under the furniture for what the respondent might have believed was a weapon. The theory of the Crown was that this constituted murder unless, at trial, self-defence was made out. Alternatively, the Crown sought a committal for trial on unlawful act manslaughter. The preliminary inquiry judge discharged the respondent on the murder charge and that decision is no longer in issue. The preliminary inquiry judge also concluded that there was no evidence of a marked departure from the standard of care to support a committal for manslaughter.

[2] The reviewing judge was asked to deal with the case solely on the basis that the respondent should be ordered to stand trial for manslaughter based on careless use of the firearm with his finger off the trigger or on the trigger. The reviewing judge found no jurisdictional error by the preliminary inquiry judge. He was alive to the issues and considered all the evidence.

[3] On appeal, the appellant submits that the preliminary inquiry judge failed to consider all the evidence and therefore fell into jurisdictional error. Counsel for the appellant focuses on the evidence as to the position of the deceased’s hands and the controversy as to whether the respondent was in possession of a spare magazine in his load-bearing vest. The appellant submits that the preliminary inquiry judge exceeded his jurisdiction by weighing the evidence. We do not agree.

[4] The central problem for the appellant is that it adduced no evidence as to the standard of care. While such evidence will not be required in many cases involving death by firearm, this was a case involving the use of a firearm by an Emergency Task Force officer acting in the course of his duty. There had to be some evidence that the conduct of the respondent was a marked departure from the standard of care: R. v. Gosset (1993), 1993 CanLII 62 (SCC), 83 C.C.C. (3d) 494 (S.C.C.) at 503-5. The only evidence adduced, non-expert evidence from trainers and members of the ETF, was that the manner in which the respondent used the firearm was not careless. As the reviewing judge noted, the only evidence was that the respondent handled the firearm in accordance with his training and Toronto Police policies. This evidence included permitting the firearm to be in a suspended position on the “Y” sling as an alternative method of controlling it. The reviewing judge did not err in interpreting the evidence as showing that the death of Mr. Osawe 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”. As to the alternative theory that the respondent shot the deceased when he had his finger on the trigger, there was simply no evidence to support it.

[5] This was not a case of failing to consider relevant evidence, but merely a question of assessing the reasonableness of the inferences to be drawn from the evidence as the preliminary inquiry judge is required to do in a circumstantial case. As McLachlin C.J.C. said in R. v. Arcuri, 2001 SCC 54 at paras. 29 and 30:

The question that arises in the case at bar is whether the preliminary inquiry judge's task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. [Emphasis added.]

[6] The preliminary inquiry judge did the limited weighing of the whole of the evidence as envisaged in Arcuri. As there was no jurisdictional error, the appeal must be dismissed.

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”