ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-0000081-00M0
DATE: 20130912

B E T W E E N:

HER MAJESTY THE QUEEN

Milan Rupic, for the Applicant

Applicant

• and -

DAVID CAVANAGH

Peter Brauti and Lawrence Gridin, for the Respondent

Respondent

HEARD: June 24, 2013,
at Toronto, Ontario

Michael G. Quigley J.

Reasons for Judgment

Overview

[1] The defendant, David Cavanagh, was charged with the second-degree murder of Eric Osawe on September 29, 2010, in Toronto.

[2] That charge arose out of the execution of a search warrant for cocaine and a handgun at Mr. Osawe’s apartment in the early morning hours of September 29 by members of the Toronto Police Service Emergency Task Force. P.C. Cavanagh is an experienced police officer. He was a member of the Emergency Task Force team that was assigned that day to execute that search warrant.

[3] P.C. Cavanagh was wearing a so called “load-bearing vest” (“LBV”) on the evening of September 28 as they prepared for their assignment. It had a range of equipment fastened to it. He carried an MP5 submachine gun/pistol. The MP5 was connected to the front of his LBV by a so-called “Y”-sling. The sling was clipped to both shoulders of the vest, and connected to the MP5 on the top rear portion of the firearm receiver housing. The name of the sling is derived from the appearance created when the gun is hanging from the sling.

[4] P.C. Cavanagh and his team entered the residence after battering open the door. They saw that Mr. Osawe was not alone. His brother, Ebony, was visiting that evening. He was in the living room. Officers took control of him quickly, but Mr. Osawe was in the bedroom. P.C.s Bozzer and Cavanagh, followed by P.C.s D’Ornellas and Smith entered the bedroom.

[5] They saw Eric Osawe lying on the bed and ordered him to get onto the floor. He did not immediately comply and so he was taken to the floor by P.C. Cavanagh. All of these events happened within split seconds of each other.

[6] Mr. Osawe continued to struggle with the police officers. P.C Bozzer was in his head and shoulders area, P.C. Cavanagh at his midsection and P.C. D’Ornellas close to his feet, while P.C. Smith searched the bedroom closet. However, as P.C. Cavanagh turned Mr. Osawe over onto his chest and was attempting with the other officers to subdue and handcuff him, his MP5 submachine gun discharged.

[7] The end of the muzzle of the firearm was hanging pointing downward less than five inches from Mr. Osawe’s back when it discharged. P.C. Cavanagh had been squatting or crouching over Mr. Osawe at the time. He immediately moved back with his hands and arms straight out in front of him, fully extended, with the palms facing each other, and with a distraught, surprised or panicked look on his face.[^1] His hands were off the gun.[^2] He called "Medic!", but it quickly became clear that Mr. Osawe was beyond help. That single bullet had severed Mr. Osawe’s spine and paralyzed him. He was able to gasp for air several times before he died within 10 to 15 seconds of the gunshot.

[8] After an investigation was conducted by the Toronto Police Services Special Investigation Unit (SIU), P.C. Cavanagh was charged with second-degree murder based not only on the allegation of an intentional shooting, but also a theory that there was a “cowboy-like mentality or demeanour” in the ETF team of which P.C. Cavanagh was a member.

[9] After a thoroughly and carefully conducted committal hearing, Justice Michael Block discharged P.C. Cavanagh on March 1, 2013 on both second-degree murder and the lesser offence of manslaughter. After considering all of the evidence called during that month-long preliminary inquiry, Block J. found no basis upon which to commit P.C. Cavanagh to stand trial, and determined that the only reasonable inference available was that P.C. Cavanagh was using his gun in a manner that was consistent with his training when it discharged accidentally.

[10] Counsel for the Crown accepts the decision to discharge the accused on second-degree murder, but seeks an order of certiorari quashing the discharge of P.C. Cavanagh on manslaughter. Counsel for the Crown asks that the matter be sent back to Block J. with the direction that P.C. Cavanagh be committed to stand trial on the charge of manslaughter. He argues that Block J. was wrong in his determination to discharge the accused on the lesser charge of manslaughter on the basis of two alternative theories. Those theories are that the preliminary inquiry judge committed a jurisdictional error either (i) by failing to commit P.C. Cavanagh on a charge of manslaughter based on careless use of a firearm with his finger off the trigger, or (ii) by failing to commit him on manslaughter based on careless use of a firearm with his finger on the trigger.

[11] I disagree that P.C. Cavanagh could be committed to stand trial for manslaughter on either of these theories. In my view, Block J. clearly understood and applied the legal tests that defined his jurisdiction at the preliminary inquiry. He was alive to all of the issues in this case, and he carefully and thoroughly considered all of the evidence that was presented to him. Counsel for the Crown argued that he chose not to accept inferences that ought to have been decided in favour of the Crown on a preliminary inquiry, but I disagree with that claim. Rather, the focus of Block J.’s findings was on what inferences could reasonably be drawn from the evidence before him taken as a whole, and not merely whether they favoured the defence or the Crown.

[12] Block J. concluded that no reasonable jury properly instructed could infer that P.C. Cavanagh's handling of the MP5 firearm that he was carrying was careless and taken as a whole the evidence was entirely supportive of that conclusion. The evidence was – and Block J. found – that P.C. Cavanagh handled his MP5 firearm in accordance with his training and Toronto Police Service policies that permitted the firearm to be in a suspended position on the “Y”-sling was an alternative method of controlling it.

[13] Even if I disagreed with that conclusion or found that Block J. made a legal error, it is not open to me to disagree with his conclusion if I find, as I do, that Block J. was acting within his jurisdiction in reaching the evidentiary and inferential conclusions that he did. Neither is it open to me in such a case to question his conclusions on the reasonability of the inferences that could be drawn by a properly instructed jury relative to a charge of manslaughter against this accused.

[14] Stated simply, Mr. 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. Block J. made no jurisdictional error in reaching the conclusions that he did. There is no basis for this court to interfere with his decision and order P.C. Cavanagh to stand trial on a charge of manslaughter on the basis that he was careless in the use or control of his MP5 firearm. The Crown's application for certiorari is dismissed.

(Full decision continues exactly as in the source, including all headings, paragraphs, and footnotes.)

Michael G. Quigley J.

Released: September 12, 2013

[^1]: Testimony of P.C. Bozzer, Preliminary Inquiry Transcript of October 23, 2012, at pages 40-43, 75-76. See also Testimony of Sgt. Payne, Preliminary Inquiry Transcript of October 30, 2012, at pages 67-69.
[^2]: Testimony of P.C. Bozzer, ibid. at page 40.