Court Information

Information No.: 4817 998 12 01883

Ontario Court of Justice (Central Region – Toronto)

Parties

Between:

Her Majesty The Queen

Counsel for the Crown:

• R. Morrison
• J. McInnes

- and -

David Cavanagh

Counsel for Mr. Cavanagh:

• P. Brauti
• L. Gridin

Hearing and Judgment

Heard: October 1, 3, 4, 9, 15, 16, 18, 22, 23, 24, 25, 29, 30, 31, 2012; November 1, 2012

Judgment Delivered: March 1, 2013

Before: Block, J.

Reasons for Judgment

Overview

[1] In the early morning of September 29, 2010, the apartment of Eric Osawe located at 11 Dunbloor Road, apartment 301, Toronto, was entered pursuant to warrant. The warrant authorized a search for cocaine and a handgun. The entry was executed by the Emergency Task Force (ETF), standard when search warrants of this kind are granted to the Guns and Gangs unit of the Toronto Police Service. A team of ETF members under the tactical command of Sgt. Payne entered the apartment after battering open the door with a ram. They announced their identity, detonated a distraction device colloquially described as a "flash bang" and entered.

[2] Some members of the team took control of Ebony Osawe, the brother of the target of the search, Eric Osawe. He was sitting in the living room. Other members, including P.C. Bozzer and P.C. Cavanagh, followed by P.C. D'Ornellas and P.C. Smith entered the bedroom. P.C. Cavanagh wore a load-bearing vest with a wide range of equipment fastened to it. P.C. Cavanagh carried an MP5 submachine gun. The MP5 was connected to the front of the vest by a Y shaped sling. The sling was clipped to both shoulders of the vest and one connection on the top, rear portion of the firearm receiver housing.

[3] They saw Eric Osawe lying on the bed. The officers shouted commands to Mr. Osawe to lie down on the floor or words to that effect. Mr. Osawe did not comply and was taken to the floor by P.C. Cavanagh. He was forced into a prone position lying on his stomach. P.C. Cavanagh, P.C. D'Ornellas and P.C. Bozzer continued to struggle with Eric Osawe. At this time, Mr. Osawe was killed by a single bullet fired from the MP5 held by P.C. Cavanagh. P.C. Cavanagh is charged with second degree murder.

Admissions

[4] The Crown accepts that there is no direct evidence that P.C. Cavanagh intended to fire his weapon, that reasonable and probable grounds existed for the search of Mr. Osawe's apartment and that a dynamic entry was appropriate. The defence accepts that P.C. Cavanagh was in physical possession of his MP5 machinegun when it discharged and killed Mr. Osawe.

The Law

[5] Her Majesty the Queen v. Arcuri, [2001] 2 S.C.R. 828, governs the law applicable when the Crown seeks committal through circumstantial evidence. In arriving at a decision in such cases, the preliminary inquiry judge is required to assess all of the evidence in a limited weighing exercise of whether a reasonable jury, properly instructed, could infer guilt. In the key paragraphs, 29 through 32, the Court outlines the necessary approach:

"29. 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.

"30. 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.

"31. The traditional formulation of the common law rule perhaps suggests a different approach. Traditionally, it is said that a preliminary inquiry judge must commit the accused to trial if there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt: see, e.g., Shephard, supra, at p. 1080. That formulation of the rule could be misunderstood to mean that, if the Crown presents evidence that would on its own be sufficient to support a verdict of guilty, the preliminary inquiry judge need not consider the exculpatory evidence proffered by the defence.

"32. This result would obviously be inconsistent with the mandate of the preliminary inquiry justice as is expressed in s. 548(1), which requires the preliminary inquiry justice to consider "the whole of the evidence". Further, it would undermine one of the central purposes of the preliminary inquiry, which is to ensure that the accused is not committed to trial unnecessarily . . . . Whatever the evidence of the Crown and defence, the judge must consider "the whole of the evidence", in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt. The question is the same whether the evidence is direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilt, the only remaining question being whether the evidence is to be believed, which is a question for the jury."

[6] In Her Majesty the Queen v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, Justice Fish neatly summarized the Court's view of the test endorsed in Arcuri, supra, and first explained in Her Majesty the Queen v. Charemski, [1998] 1 S.C.R. 679, at paragraph 53:

"The Crown's persuasive burden on this issue can only be discharged by proof beyond a reasonable doubt. Accordingly, as McLachlin J. explained in Charemski, supra, the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt."

[7] No rational conclusion of guilt can be based on speculation. In his extensive review of appellate authorities in Her Majesty the Queen and Alexander, [2006] O.J. No. 3173 (S.C.J.), and Her Majesty the Queen and Munoz, [2006] O.J. No. 446 (S.C.J.), Justice T. Ducharme considered the process by which the preliminary inquiry justice must draw inferences to carry out the limited weighing required when the evidence under consideration is circumstantial.

[8] His Honour distilled the following principles:

1. Inferences must be based on objective facts established by the evidence. If there are no supporting facts there is no reasonable inference, only speculation.

2. Inferences must be drawn reasonably and logically from the established primary facts.

[9] In respect of a potential finding of careless use of firearm, reference should be made to Her Majesty the Queen and Sokolowski, [1994] O.J. No. 728. Watt J., as he then was, considered the case of a Toronto Police officer who ran after a suspect in the dark over uneven and unfamiliar ground while holding his service revolver in one hand with his finger on the trigger. The accused then unintentionally shot the suspect in the head while attempting to subdue him. His Honour found that there were no reasonable grounds to believe that drawing the weapon was necessary to protect life, particularly when other officers were present.

[10] His Honour held that a conviction would require a marked departure from the standard of care of a reasonably prudent person in the circumstances.

Issues

[11] I must commit P.C. Cavanagh to trial on a charge of second degree murder if I find that a reasonable jury, properly instructed, might infer that he deliberately fired his weapon. I must commit P.C. Cavanagh to trial on a charge of manslaughter if I find that a jury could not reasonably infer that P.C. Cavanagh deliberately fired his weapon, but might infer that he handled his MP5 in a marked departure from the standard of care of a reasonably prudent ETF officer facing a noncompliant suspect during a dynamic entry.

Crown's Theory of the Case

[12] The Crown's theory of the case is that P.C. Cavanagh honestly but unreasonably believed that it was necessary to shoot Mr. Osawe in self-defence. The Crown concedes that there is no direct evidence that P.C. Cavanagh intentionally fired his weapon. The Crown argues that a reasonable jury, properly instructed, could convict P.C. Cavanagh of second degree murder based on inferences drawn from the evidence that he deliberately shot Mr. Osawe.

[13] Alternatively, the Crown argues that if the evidence falls short of permitting a reasonable inference of intentional shooting, a jury could reasonably infer that P.C. Cavanagh committed the offence of careless use of firearm and thus should be committed to trial on a charge of manslaughter.

[14] The Crown's submission can be summarized by the following propositions:

1. The Guns and Gangs unit and the ETF leadership exaggerated the dangerousness and criminality of Mr. Osawe in a "toxic" briefing and communicated that to the team entering his apartment.

2. As a result, the ETF entry was too dynamic. It would be reasonable for a jury to find that P.C. Cavanagh absorbed their excessively aggressive approach into his own state of mind.

3. P.C. Cavanagh was too eager to use physical force. This is demonstrated by his beating of Mr. Osawe after waiting an insufficient time for this stunned, fearful and disoriented man to comply with the police demand to lie on the bedroom floor.

4. The location of the wound is evidence of intention to kill.

5. P.C. Cavanagh's utterances after the gunshot are evidence of his surprise that Mr. Osawe was not reaching for a weapon.

6. The simplest explanation for the discharge of P.C. Cavanagh's weapon is that it was a deliberate act.

Was the Briefing Toxic?

[15] The Crown argues with vehemence that the police exaggerated the criminality and dangerousness of Mr. Osawe. Influenced by the "toxic" pre-search briefing, P.C. Cavanagh was in an overly combative frame of mind and did not allow Mr. Osawe enough time to comply with the police demands that he lie down on the floor of the apartment, particularly as, in the Crown's submission, Mr. Osawe was disoriented and frightened by the unnecessary use of the distraction device.

[16] I reject the submission that the police inflated the potential danger. This submission seems to be primarily based on the fact that the search warrant informant, Detective Tanabe, had in error supplied information that Mr. Osawe had previously been convicted of two robberies when, in fact, he had been convicted of one robbery, a knife-point home invasion involving a woman and small child. In the other robbery incident in which a firearm was used in the robbery of a cell phone, Mr. Osawe, an active participant, had been convicted of assault and theft. In addition, the ETF officers involved in the search wrongly believed that Osawe had used a firearm to force a woman to perform fellatio. This sexual assault had, in fact, been without benefit of a firearm. In the Crown's view, the police did not appreciate the significance that Mr. Osawe had apparently never been combative with the police during any of his previous arrests.

[17] The search warrant application was grounded in an excellent credible basis for the belief that Mr. Osawe traded in cocaine and handguns. The Crown agrees that reasonable and probable grounds existed for this search. Indeed, cocaine and a loaded 9 mm handgun were located in the Osawe apartment. It is clear that the factors which determined that a dynamic entry was necessary were not primarily Mr. Osawe's serious violent criminal antecedents but his current status as an armed drug and firearms trader.

Can the Facts Alleged at the Briefing Supply Evidence of P.C. Cavanagh's Intention?

[18] No alleged exaggeration of the threat posed by Mr. Osawe by Detective Tanabe or by the ETF leadership could supply evidence of P.C. Cavanagh's intention unless there is some evidence, by word or deed, that the defendant shared this state of mind. P.C. Cavanagh was not in command of the unit entering the apartment. He had no leadership capacity. The alleged "attitudinal deficits" of the ETF or the Guns and Gangs unit cannot support an inference that he may have intended to shoot Eric Osawe.

Was the Entry Too Dynamic?

[19] The police did not find the loaded 9mm handgun under the living area sofa cushion until after the ETF left the apartment. Until that firearm was secured, it would have been foolhardy for the police to base their tactics on an assumption that Mr. Osawe, because of an apparently passive history with the police, was reluctant to use his firearm or that he could not readily access it. Common sense demands that the armed capacity of the suspect outweigh other considerations. The only reasonable conclusion was that the ETF team was required to use the tactics of surprise and distraction and the demonstration of overwhelming force in order to prevent the use of that firearm.

[20] The Crown concedes that a dynamic entry was necessary. The Crown's position appears to be that entry was overly dynamic. Their concern appears to be related to two issues: the use of the distraction device and a suggestion that the police conduct indicated a common intention to use unreasonable and unnecessary force. In the Crown submission, P.C. Cavanagh absorbed and applied that unit attitude.

[21] When assessing whether it would be open to a jury to find the tactics of ETF indicia of an unreasonable "cowboy" mentality in this case, the court must consider the words of the Supreme Court in Her Majesty the Queen v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142. In assessing the reasonableness of tactics employed in a dynamic entry, at paragraph 24 the judgment states:

"...the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback."

[22] The Crown sought opinion evidence with respect to the tactics employed by the unit in general and by P.C. Cavanagh in particular on September 28, 2010 during the dynamic entry. This evidence was sought from Sgt. Scott Payne, the commander of the unit that entered Mr. Osawe's apartment, and from two senior members of the ETF, Constable Helio Pereira and Sgt. Terry Sidora, who had no role in these events.

[23] Sgt. Sidora was examined in respect of the use of the distraction device, unit tactics during dynamic entry, the rapidity with which an officer would physically engage a noncompliant subject and the handling of the officer's MP5 during the engagement. This officer had been with the Emergency Task Force for 21 years at the time of his testimony and been the training officer for the unit for four years. He stated that the use of the distraction device was common where dynamic entry was necessary and there were no children, elderly or pregnant persons present who might be harmed by the use of the device.

[24] These devices disorient potentially armed subjects and give the police an advantage in assuming control over the premises. Where, as in this case, the subject was in another room with the door closed, the flash would have no effect and the effect of the bang greatly diminished. His testimony left no doubt that the use of the device was reasonable in this situation.

[25] Sgt. Payne and Sgt. Sidora both testified regarding the unit tactics employed on entry. They told the court that the presence of an armed man dictates the use of a distraction device, as much surprise as possible and the deployment of overwhelming numbers of heavily armed officers acting with all possible speed to overcome resistance before the subjects can resort to armed confrontation. Sgt. Sidora detailed the many hours ETF officers train each year in mastering these entries. Sgt. Payne explained that the ETF performs almost 200 such entries per year, including a similar dynamic entry the same evening by the same team. There can be no doubt that these are standard tactics frequently rehearsed by highly trained officers who then employ them several times a week in very real situations.

[26] The opinion evidence called by the Crown does not support the submission that the tactics employed were flawed or betrayed "serious attitudinal deficits". In my view none of the narrative evidence supports that proposition. Even if the tactics employed were questionable, P.C. Cavanagh was a subordinate member of the entry team. He neither determined the tactics nor directed their use.

Cavanagh's Conduct After Entry

[27] The Crown contends that P.C. Cavanagh's conduct after entering the apartment suggests a reasonable inference that he possessed a state of mind predisposed to the unreasonable use of deadly force. In particular, they ask me to note the initiation of physical contact with Mr. Osawe after a brief interval of noncompliance and the fact that P.C. Cavanagh engaged Osawe with both hands with the safety off his MP5.

[28] Officer Pereira's testimony chiefly related to the use of the Y sling and the position of the safety during a dynamic entry. He related that he would have the safety off during a dynamic entry as he came through the door. He said that when a subject did not immediately comply with demands to lie on the floor, he would engage and try to control the subject as quickly as possible to prevent him from getting access to the firearm. He stated that he would prefer to put the weapon on safety before engaging the subject if time permitted.

[29] Sgt. Sidora testified that officers executing a dynamic entry search warrant in these circumstances are required to act decisively when the subjects fail to comply with their demands concerning their movements or position. He testified that subjects who hesitate may be forming plans to resist the police. When it is believed that there are firearms in proximity, it is of utmost importance that persons in the premises be subdued without delay. The subject must be presumed to have physical possession of the firearm until proved otherwise.

[30] Sgt. Sidora testified at some length regarding the handling of the MP5 in situations mirroring the one before this court. Directed to the issue, he said that when it was believed that a firearm was located in an unsecured residence the officer should have his safety off. It would be necessary to speedily, physically confront a suspect not complying with directions to get to the floor. In such a situation, this witness would expect an officer carrying an MP5 on a sling to release the weapon and use two hands on the suspect. It would be expected that the officer keep his weapon off safety to meet potential threats. Once the officer went hands-on with the subject, he would not go hands-off until the subject was physically secured.

[31] Sgt. Payne testified that having the safety off during a dynamic entry was appropriate. He indicated that he likely would have tried to engage the noncompliant subject with his feet, but that this was an issue of personal discretion requiring consideration of the ability of the officer and the size of the subject.

[32] Arcuri, supra, requires that I consider all of this evidence when considering whether P.C. Cavanagh's behavior prior to the melee on the bedroom floor might demonstrate to a jury any inclination to shoot Mr. Osawe. Of course, the unanimity of professional opinion does not bind the discretion of any court. However, nothing in the evidence before me undermines the opinion evidence proffered by the Crown. A reasonable jury would not demand that police entering an unfamiliar place where an armed confrontation is a possibility handicap their ability to master the situation and forestall resistance.

[33] The only reasonable interpretation of P.C. Cavanagh's conduct at this time is that he was conducting himself in a manner appropriate to the situation. In particular, the uncontradicted evidence is that P.C. Cavanagh handled his firearm in accordance with professional standards.

[34] The Crown also argues that evidence of P.C. Cavanagh's state of mind can be inferred by the manner in which the suspect's brother, Ebony Osawe, was subdued in the living room. It is difficult to fathom this submission. Whether excessive force was used on this man is irrelevant to this proceeding. His presence in the apartment was a surprise to the ETF team. P.C. Cavanagh had no contact with Ebony Osawe during his rapid passage from the front door to the bedroom.

Are Osawe's Non-Fatal Injuries Evidence of Excessive Force by Cavanagh?

[35] The Crown submission is that P.C. Cavanagh "beat up" Mr. Osawe and that his conduct during the physical struggle would reasonably suggest to a jury an appetite for excessive force from which a jury could conclude deliberate shooting. Mr. Osawe's body was found to have a number of bruises and abrasions to his torso and face including one to his eye.

[36] Until the moment of his death Mr. Osawe continued to resist. The police were not subduing a shoplifter. P.C. Bozzer and P.C. D'Ornellas believed that Mr. Osawe might be trying to reach for his gun. Would a reasonable jury "gauge with nicety" the number of bruises and abrasions in these circumstances?

[37] In this context, Mr. Osawe's bruises and abrasions were neither medically significant nor indicia of deadly intent. There were no broken bones nor open wounds. The injuries that were inflicted prior to the gunshot were no more than might be expected in minor bar fight or a heated hockey game.

[38] The evidence indicates that P.C. Cavanagh did not inflict the two most significant injuries, the damage to Mr. Osawe's face and a large bruise on his shoulder. P.C. Bozzer, a large, fit man, testified that he kicked Mr. Osawe in the head with heavy combat boots and knee-dropped onto his shoulder during the struggle. According to Dr. Kepron, some of the minor injuries to Mr. Osawe's mouth may have been the consequence of medical intervention after the gunshot.

[39] These injuries were inflicted in an attempt to lawfully subdue a potentially armed man. In my view, no reasonable inference can be drawn that P.C. Cavanagh used any more force than was necessary to remove Mr. Osawe from the bed and attempt to put him in restraints.

The Struggle on the Bedroom Floor

[40] P.C. Cavanagh, P.C. Bozzer, P.C. D'Ornellas and ultimately P.C. Smith passed from the entrance through the living area into the bedroom immediately after the door was breached. When P.C. Cavanagh and P.C. Bozzer reached the bedroom, Mr. Osawe was on the bed. He did not comply with demands to "show me your hands" or "get on the ground" even though those demands were made by police officers in ETF combat clothing pointing firearms at him. According to the evidence of P.C. Bozzer, he did not appear frightened or disoriented.

[41] P.C. Cavanagh advanced on Mr. Osawe and, in the accepted jargon, used both hands to go "hands-on" with this robust young man and succeeded in removing him from the bed. P.C. Cavanagh then continued grappling with Mr. Osawe on the floor while shouting commands to "stop resisting". Mr. Osawe went to his knees before being forced into a prone position face down on the floor. He continued to struggle.

[42] P.C. Bozzer and P.C. D'Ornellas came to the aid of P.C. Cavanagh. A melee ensued while Mr. Osawe thrashed about on the floor with a dresser to his immediate left and with his feet nearest the bed. The three police were arranged on Mr. Osawe's immediate right. P.C. Bozzer was situated at Mr. Osawe's head and uppermost torso, P.C. D'Ornellas tried to control Mr. Osawe's feet and P.C. Cavanagh was in between his colleagues. All three officers were in a lowered, crouching or kneeling position during this struggle.

[43] Both P.C. Bozzer and P.C. D'Ornellas recounted Mr. Osawe appearing to reach under the dresser to his left. P.C. Bozzer kicked Mr. Osawe forcefully in the head or shoulder area and then dropped his left knee with his full weight behind it on Mr. Osawe's right shoulder. Mr. Osawe continued to struggle. P.C. Bozzer was aware of P.C. Cavanagh on his immediate left. P.C. Bozzer may have been in incidental contact with Cavanagh during the struggle but was unaware of what P.C. Cavanagh was doing.

The Gunshot

[44] At that moment P.C. Bozzer heard "a soft pop sound". He heard P.C. Cavanagh yell "medic" and "shot" and turned to look at P.C. Cavanagh within one or two seconds of the shot. P.C. Bozzer initially thought P.C. Cavanagh had been shot until he followed his gaze down to the wound in Mr. Osawe's back. P.C. Cavanagh was in a lowered, crouching or bending position overtop of Mr. Osawe. P.C. Bozzer stated that P.C. Cavanagh may have been kneeling on Mr. Osawe or on the floor beside him. P.C. Cavanagh's hands were empty, his arms were coming back from a fully outstretched position in front of him over Mr. Osawe. P.C. Cavanagh's eyes were wide open with surprise. He appeared shocked and confused.

[45] P.C. Bozzer testified that it would be impossible for P.C. Cavanagh to line up for "textbook kill shot", shoot, release his weapon, leave the firing stance and assume the position in which P.C. Bozzer found him in the one to two seconds after the discharge. P.C. Bozzer confirmed that standard practice would require P.C. Cavanagh to have his weapon off safety, engage Mr. Osawe with both hands and not break off contact until Mr. Osawe was secure. He also confirmed that the MP5 would dangle muzzle-down in a vertical position from the Y sling when released.

[46] P.C. Mark D'Ornellas was the team leader that night and had been with the ETF since 2004. When he entered the bedroom, P.C. Cavanagh was struggling with Mr. Osawe. Mr. Osawe was not responding to commands to get to the floor and show his hands. P.C. D'Ornellas moved to assist P.C. Cavanagh. He took a position at Mr. Osawe's legs. He intended to handcuff Mr. Osawe once he was subdued. P.C. Cavanagh was on his right dealing with Mr. Osawe's midsection.

[47] P.C. D'Ornellas saw Mr. Osawe reach under the dresser. He grabbed that arm around the elbow. He couldn't say what position P.C. Cavanagh was in other than in a posture low enough over for his arm to be in contact or close to contact overtop of Mr. Osawe's left arm. That's when he heard a "pop". He did not see P.C. Cavanagh's firearm in his arms. P.C. Cavanagh looked shocked and upset.

[48] The Crown took the position that P.C. D'Ornellas' evidence was not credible as he had not commented on the position of P.C. Cavanagh's arms at the time of the shot when interviewed by the SIU after the incident. This omission was the subject of cross-examination by the Crown at the preliminary inquiry pursuant to an application under s. 9(2) of the Canada Evidence Act. The evidence of this witness must be approached with caution to determine whether it is corroborated by other participant evidence or forensic evidence when determining what inferences a jury may reasonably draw.

[49] P.C. Smith entered the bedroom to find P.C. Bozzer, P.C. Cavanagh and P.C. D'Ornellas struggling to subdue Mr. Osawe. He could not say precisely what any of these men were doing. He could not, at that point, identify the colleagues who were dealing with the man on the floor as their backs were towards him. He could not say what form Mr. Osawe's resistance was taking. The officers were close enough to each other that his view of the subject was obstructed. He did see a lot of movement. The men were struggling. He saw an arm flailing. He also noted that all three of his colleagues appeared to be crouching or kneeling over the subject. He turned to clear the closet. After a few seconds, he heard a "pop". He turned back. He saw Mr. Osawe was in obvious distress.

[50] Sgt. Payne was in the living room putting handcuffs on Ebony Osawe. He heard a "pop" and entered the bedroom within seconds. He saw Eric Osawe on his stomach on the floor. His hands were at his side raised and he was arching his back with his head up. P.C. Cavanagh's posture was low over Mr. Osawe, crouching or kneeling. His firearm was hanging from its sling. He appeared to be asking, "This man needs help." He appeared surprised, distraught and in panic.

[51] The evidence of P.C. D'Ornellas and P.C. Bozzer is direct evidence that contradicts the Crown's proposition that the defendant either set up for a "classic textbook kill shot" or handled his weapon in any manner at the time of its discharge. Sgt. Payne gave evidence of P.C. Cavanagh's posture and arm location just after discharge. P.C. Smith gave evidence of the defendant's posture just before the discharge. I am required to consider this exculpatory evidence when considering whether the circumstantial evidence proffered by the Crown would permit a reasonable jury, properly instructed, to infer intentional discharge.

[52] The testimony at the preliminary inquiry provided no time estimate for the melee on the floor. A review of the evidence of all the police and paramedics present that early morning suggests that the melee on the floor was approximately 20 to 30 seconds duration.

[53] The evidence of the trajectory of the wound path and the evidence of gunshot residue do not support the proposition that Cavanagh set up for and deliberately fired the fatal shot. This evidence supports the testimony of P.C. Bozzer, P.C. D'Ornellas, P.C. Smith and Sgt. Payne.

[54] A firearms examiner from the Centre of Forensic Sciences, Judy Chin, was called by the Crown and qualified as an expert in areas relevant to this case. She analyzed the debris left on the deceased's clothing by the fatal shot. This analysis confirmed that at the time of discharge the muzzle was oriented toward the head of the deceased and the attached flashlight oriented toward his feet. The forensic pathologist, Dr. Kepron, testified that the path of the bullet through the body of the deceased was essentially vertical, angled slightly right to left and slightly downward through the back of Mr. Osawe's body towards his front.

[55] The inescapable conclusion is that the barrel of the firearm was aligned parallel to the front of P.C. Cavanagh's body. The firearm was almost vertical in a slight "upside-down" orientation. The magazine was oriented slightly upward and the top of the weapon angled slightly toward the floor. This evidence is consistent with the MP5 hanging from the Y sling while P.C. Cavanagh grappled with the deceased using both hands. Ms. Chin also determined that P.C. Cavanagh could not have been standing upright at the time of the shot.

[56] The Crown urges me to find that a reasonable inference of deliberate shooting is available to a jury based on the location of the shot viewed in the light of the extensive and exhaustive firearms training undergone by a member of the ETF. That training, on the evidence, would have taught P.C. Cavanagh to aim for the head or torso when required to discharge his weapon when he feared for his life or the lives of others.

[57] We know from the evidence of P.C. Bozzer and P.C. D'Ornellas that P.C. Cavanagh occupied the central position in the three-man effort to subdue Mr. Osawe on the bedroom floor. The defendant was crouched or kneeling overtop of Mr. Osawe's back just to the left of P.C. Bozzer. The trajectory of the shot was essentially vertical. Given P.C. Cavanagh's position, an accidental discharge from a vertically-dangling firearm would very likely strike Mr. Osawe in the torso. In my view, there is nothing in the location of the wound itself that suggests intentional discharge.

[58] There is a great deal of evidence that suggests that the fatal gunshot occurred in a manner inconsistent with the extensive training and established practice established in the evidence proffered by the Crown. If P.C. Cavanagh shared his teammates' concern that Mr. Osawe had been reaching for a firearm, his training would require that he continue the hands-on struggle. This is consistent with the opinion evidence of Sgt. Sidora and Sgt. Payne. Relinquishing physical contact would have given Mr. Osawe several seconds to reach his own weapon while P.C. Cavanagh set up for the shot.

[59] I am also required to use ordinary human experience and common sense when assessing the reasonableness of proposed inferences to be drawn from training doctrine. P.C. Cavanagh had hundreds of hours of training on this firearm. It would clearly be contrary to this training for P.C. Cavanagh to deliberately incline his firearm towards his own left leg or towards P.C. D'Ornellas, at the time struggling with the subject's feet. It would be inconsistent with this training for P.C. Cavanagh to place the muzzle of his firearm one to three inches from the back of Mr. Osawe, a position in which the struggling subject would be likely to knock the firearm out of position and thus endanger P.C. Cavanagh's colleagues. Without question, an onlooker to that struggle would have seen a heaving mass of arms, legs and torsos. The likelihood of hitting a fellow police officer would have been high. Would it have been consistent with his training for P.C. Cavanagh to deliberately discharge his weapon into that chaos?

[60] I have already reviewed the medical and gunshot residue evidence that establishes the actual position of the firearm at the time of discharge. This evidence is completely inconsistent with the approved MP5 firing position which requires the weapon to be held perpendicular to the marksman and with both hands. The fact that the MP5 discharged once suggests the safety position selected was the single-shot position. This is evidence that the defendant turned his mind to his training and unit practice.

[61] In the October 2012 test, P.C. Cavanagh re-enacted the melee on the bedroom floor with the assistance of other members of the ETF. Ms. Chin attended and recorded her observations. She was informed that P.C. Cavanagh was wearing the same clothing and equipment in the same way that he wore them on the morning of Mr. Osawe's death. This included the MP5, the Y sling, the vest and all of the many pieces of equipment that were mounted on the vest or placed in its pockets and receptacles. Ms. Chin testified that during this test she observed the trigger actuating on spare MP5 magazines located on Mr. Cavanagh's vest. She also agreed that the trigger could be actuated on the Taser unit also located on the vest.

[62] I do not think it is reasonable to view the October 2012 test as a controlled test which reproduced the events immediately surrounding the fatal gunshot of September 29, 2010. The tests were not carried out in real time. No controlled test could faithfully duplicate the brief and chaotic struggle on the floor of Mr. Osawe's apartment. In addition, analysis of the evidence of SIU investigators Thorne and Berney and the evidence of ETF Sgt. Payne leaves me with no certainty that the SIU seized and photographed all of the items carried on the load-bearing vest P.C. Cavanagh had been wearing on the night of Mr. Osawe's death or that P.C. Cavanagh was wearing the same equipment in the same configuration during the test that he had worn on the fatal night. However, the October 22, 2012 test does support the proposition that it is possible to accidentally engage and fully depress the trigger on an MP5 hanging from a Y sling by means of equipment protruding from the load-bearing vest while the wearer is reaching out over a prone subject from a kneeling or crouching position.

[63] There is no burden on the defence to prove the manner by which an accidental discharge could take place. Rather, it is the Crown's burden to produce some evidence from which a reasonable jury could conclude that a deliberate discharge killed Mr. Osawe. A conclusion unsupported by evidence is mere speculation.

[64] A trigger is simply a lever. The phrase "off safety" has practical meaning. Any loaded firearm off safety is a potential source of immediate accidental death, particularly when present in the middle of a wrestling match. Any protruding object which could enter the space between the trigger guard and the front of the trigger and then transmit 6.2 pounds of pressure to the trigger could cause an accidental discharge. The orientation of the weapon during the melee on the bedroom floor, nearly vertical and with the side of the trigger parallel to the front of the vest, afforded ample opportunity for the trigger to become so engaged. In the crouched or kneeling forward-reaching posture described by the witnesses to the melee on the bedroom floor, P.C. Cavanagh's weapon would have been lowered toward the prone Mr. Osawe. The evidence of Ms. Chin makes it clear that the weapon descended to a point where the flashlight contacted or nearly contacted Mr. Osawe's back. This motion is consistent with an action that would have actuated the trigger if it engaged one of the pieces of equipment mounted on P.C. Cavanagh's vest.

[65] During the evidence of Helio Pereira, an Emergency Task Force training officer called by the Crown, he was asked about the importance of keeping the trigger finger on the trigger guard until ready to fire. In a remarkable exchange, located at page 12 in the evidence of October 16, 2012, Crown counsel Mr. Morrison and the witness capture the potential for accident in any confrontation involving firearms and physical conflict:

Q. Does universal cover mode or keeping your finger on the frame of the weapon, does the rule change in any way if the safety of the weapon is on?

A. No.

Q. No. And why is that?

A. It's just standard practice that the finger does not go on the trigger. Safety, Your Honour, just so you understand, the safety is not 100%; it's a mechanical device that's made by man so it's prone to failure. I've seen guns go off with the safety on. So you can never trust it. Your ultimate safety is always your finger…

Q. Ultimate safety…

A. …no matter what.

Q. is the finger. Yes. We're going to hear something about this from a forensic firearms expert, but in your experience, even with the safety on, it can move, can it not. . .

A. Yes.

Q. . . .by getting into contact with equipment and things like that?

A. Yes.

[66] Sgt. Payne testified that he knew of accidental discharges of this model of firearm which did not involve mechanical failure. The evidence at this proceeding provided a great amount of information on firearms safety training. This evidence came by way of testimony and documentary materials used in training. A common feature is the focus on the inherent danger a firearm presents when not on safety. The requirement of entry into an armed household made this dangerous practice necessary. The simple, inescapable fact is that any chaotic struggle involving a firearm off safety contains the possibility of deadly accident. The evidence in this case strongly suggests that is precisely what occurred during the struggle between the three officers and Mr. Osawe.

Cavanagh's Utterances

[67] The Crown argues that P.C. Cavanagh's demeanor of shock and words of confusion and dismay following the shooting are some evidence from which a jury could conclude that he had deliberately shot Mr. Osawe because he honestly but unreasonably believed that he was reaching for a firearm. The Crown reasoning appears to be the following:

1. The paramedic McIntyre saw Mr. Osawe's arms behind his back as he entered the bedroom.

2. P.C. Cavanagh caused Mr. Osawe's arms to be in this position as neither P.C. Bozzer nor P.C. D'Ornellas believed that they moved his arms.

3. P.C. Cavanagh moved Mr. Osawe's arms after he shot him because he believed that they held a firearm.

4. P.C. Cavanagh found Mr. Osawe's hands held no firearm.

5. P.C. Cavanagh's expressions of surprise stem from his shocked realization that Mr. Osawe was not in physical possession of a firearm and not because he was surprised by the gunshot itself.

[68] I disagree. We don't know how Mr. Osawe's arms came to be in the position found by the paramedic. The medical evidence establishes that Mr. Osawe was still capable of arm movement in his final moments. We know from the evidence of other officers in the room that the dying man was arching his back and apparently fighting for air immediately after he was shot. We also know that P.C. Cavanagh did nothing with Mr. Osawe's arms immediately after the shot because at this time he was observed by four ETF officers who noticed nothing of the kind.

[69] P.C. Bozzer and P.C. D'Ornellas testified that they were concerned Mr. Osawe might be reaching for a firearm, not that they believed that he had already grasped one. There is no evidence that P.C. Cavanagh believed differently.

[70] There is no evidence that anyone from the Emergency Task Force searched for a firearm underneath the dresser or even glanced there at any time after the shooting.

[71] P.C. Cavanagh expressed shock and confusion immediately after the gunshot while Mr. Osawe's position on the floor was unchanged. These expressions were apparent before he could have known that Mr. Osawe's hands were empty or what might be under the dresser.

[72] P.C. Cavanagh made numerous other comments expressing his surprise during the next hour or so. The conclusion that this surprise was based on Mr. Osawe not being in physical possession of a firearm as opposed to surprise at the fact of discharge is purely speculative.

[73] P.C. Cavanagh's concern that there might be professional consequences in these circumstances is grounded in the evidence. It is clear from the evidence that there was a belief circulating among members of the Emergency Task Force that accidental discharge would result in dismissal from the unit. If that belief was mistaken, P.C. Cavanagh cannot be faulted for anticipating that he would, at the very least, face serious professional consequences for an accidental discharge.

[74] P.C. Cavanagh would have to know that any death of this kind was likely to require a reckoning beyond departmental embarrassment. It is in this light that his concern about facing a manslaughter charge should be evaluated. Filling expressions of stunned disbelief and worry with content not found in the utterances themselves or apparent in their context invites the danger of speculation long associated with demeanor evidence.

[75] Conduct after the shooting can, of course, supply some evidence of intent. In Her Majesty the Queen v. White, [2011] 1 S.C.R. 13, the court concluded that the immediate, unhesitating flight of the appellant from a shooting scene was evidence from which a jury might infer that the defendant was unsurprised by the result and that a deliberate shooting, as opposed to accident, took place. At paragraph 70 the Court noted:

"On the other hand, logic and human experience suggest that people are more likely to show some outward sign, such as hesitation, before continuing on with their actions, when they do something accidentally than when they do it on purpose. This is all the more so when the accident involves a sharp physical effect on the person (the discharge of a gun in one's hand) and results in a terrible consequence, such as having killed another person."

"The Simplest Explanation is Usually the Correct One"

[76] The above submission by the Crown is an over-simplified variant of the aphorism known as Occam's razor. The Crown argues that deliberate discharge is the simplest reason for this fatal shooting and therefore ought to be left to the jury as evidence from which they could infer guilt. As suggested in Stephen Hawking's, A Brief History of Time, empirical evidence must substantiate the explanation for it to have value:

"It seems better to employ the principle known as Occam's razor and cut out all the features of the theory that cannot be observed".

[77] The preponderance of shootings undoubtedly are deliberate discharges. That likelihood cannot be employed to elude the obligation that some evidence must exist from which a voluntary act might be inferred. Likelihood is the basis for many a common-sense hunch. It's often the basis for a good investigation. It is not a principle of law. The burden to supply evidence from which a jury can infer guilt must remain with the crown.

[78] In White, supra, The Court did not employ Occam's razor to determine whether accident or intentional discharge took place. The Court looked for evidence that might supply the jury with a reasonable basis to infer deliberate discharge.

Conclusion

[79] I find that there is no evidence from which a reasonable jury, properly instructed, could infer that the shooting of Eric Osawe was a deliberate act. I also find that the only potential conclusion on the evidence is that P.C. Cavanagh used his firearm in a manner consistent with professional standards. No reasonable jury, properly instructed, could find that there was a marked departure from the standard of care of a reasonably prudent ETF officer in the circumstances of this case. Therefore, there is no evidence from which a reasonable jury, properly instructed could conclude that P.C. Cavanagh carelessly used his firearm.

[80] Every dynamic entry carries with it the possibility of tragic accident, inherent in the presence of firearms in chaotic and violent events. The evidence suggests that the death of Mr. Osawe on September 29, 2010 was such a misadventure.

[81] I discharge P.C. Cavanagh on the sole count of second degree murder and any potential included offences.

Michael Block Justice