



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 Crowns 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 deceaseds 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), 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.


