Constable Dave Cavanagh.
A police officer has been charged with committing an act of murder while on duty in Canada's largest city – an explosive allegation that would set a precedent if proven.
Prosecutors say they will show, beyond doubt, that Toronto Police Constable David Cavanagh intended to kill when he fired his gun during an apartment search two years ago. Until now, the officer had been charged with manslaughter in the death of the tenant, 26-year-old Eric Osawe.
A lawyer for Mr. Osawe's family said on Thursday that the Nigerian-born Canadian was shot in the back.
The manslaughter charge against Constable Cavanagh – a 35-year-old once heralded as a hero cop – was in itself exceedingly rare. The sudden and largely unexplained elevation to second-degree murder raises the stakes enormously for every person and every institution involved. Several alleged manslaughter cases involving Canadian police officers have fallen apart, as did a 1998 case involving a count of second-degree murder.
"You go from a five-star police officer with an immaculate service record to being called a murderer – with no explanation why," the officer's lawyer, Peter Brauti, said in an interview.
Mr. Brauti said that when he was told to go to court on Thursday, he expected an acquittal. He said he and his client were floored when prosecutors upgraded the charge. "As far as I can see, there's no new evidence that's been produced," he said. "Some people say it's politics, some people say it's optics, but only the Crown knows."
The charge is about justice, and not politics, supporters of the Osawe family say.
"We're talking about a 26-year-old whose life was cut unnecessarily short in circumstances where he was shot in the back," said Julian Falconer, the lawyer for the family. He said that he would not discuss any other evidence, but added that "it does not surprise me that a charge of murder has arisen."
A generation ago, the Toronto Police Service was involved in the fatal shootings of several young black men. Criminal charges against officers were unheard of in those cases, and public anger led to anti-police marches in the streets.
In response, the Ontario government created an outside agency in 1990 to investigate deaths and serious injuries involving police use of force in the province. Critics have said the Special Investigations Unit has a poor record for charging and convicting cops.
In putting together such cases in Ontario, the SIU and Crown prosecutors have to clear high evidentiary thresholds.
A phalanx of colleagues formed around Constable Cavanagh when he appeared in court on Thursday, allowing him to enter and leave the building discreetly.
Toronto's police union is describing the murder charge as a line that should never have been crossed.
"It's absolutely absurd and insulting to all the police officers in this city," said Mike McCormack, head of the association for front-line officers. He says the murder charge will cause police to second-guess themselves in dangerous situations. "This is an officer who was doing his job with other officers. There is a discharge of a firearm – it's unheard of, in those circumstances, that anyone would suggest it was premeditated."
Not so long ago, Constable Cavanagh was a hero. In 2005, he apprehended two suspects in the fatal shooting of a 15-year-old bystander on Toronto's Yonge Street when gangsters settling scores fired bullets into crowds of Boxing Day bargain shoppers.
Five years later, in the predawn hours of Sept. 29 , 2010, Constable Cavanagh was part of a tactical squad assisting gang detectives in a raid. The police executed a warrant at Mr. Osawe's third-floor apartment near Bloor and Kipling that night to arrest his younger brother, Ebony, who was charged with gun offences.
According to a source, the younger brother did not see his sibling shot. Only four people are said to have been in a position to see what happened – Constable Cavanagh, two officers posted at the apartment door, and Mr. Osawe, who died in hospital.
With few witnesses, the prosecution might have to rely heavily on forensic evidence to prove its case.
A powerful prosecutorial tandem has been working on the case since its inception. Crown attorney John McInnes has prosecuted several police officers. Lawyer Bob Morrison goes where high-profile cases take him – last year he was part of the team that helped convict Canadian Forces Colonel Russell Williams for sex slayings, and before that, worked on well-publicized cases against Nova Scotia premier Gerald Regan and the killers who gunned down Manitoba RCMP Constable Dennis Strongquill.
A preliminary hearing is scheduled to start in October, meaning trial is likely more than a year away. The specific nature of the evidence remains secret.
"In this case, the SIU determined they had reasonable grounds to charge the accused with second-degree murder and laid that charge before the court today," said Marya Winter, a spokeswoman for the Ontario Attorney-General's office.
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POLICE OFFICERS WHO FACED THE COURTROOM
Anthony Griffin: Montreal Police Constable Allan Gosset shot Mr. Griffin, 19, in the forehead in a police parking lot in 1987. The officer testified that he drew his gun to scare the youth into surrendering, but that it discharged accidentally. He was acquitted by juries twice – first of homicide, then of criminal negligence.
Michael Wade Lawson: Two Peel Regional Police constables were accused of second-degree murder and aggravated assault in the fatal 1988 shooting of Mr. Lawson, who was 17 and behind the wheel of a stolen car. The officers' lawyer said they had feared for their lives. They fired six shots at the vehicle, one of which hit the teenager in the back of the head. Both were acquitted.
Tony Romagnuolo: Constable Randy Martin was charged with second-degree murder in the December, 1998, shooting of Toronto carpenter Tony Romagnuolo, and two other officers were charged with assault. They had gone to Mr. Romagnuolo's home to arrest his son Lorenzo. When the son resisted, his father and brother stepped in. Mr. Romagnuolo was shot dead and the brother was seriously injured. All three officers were found not guilty at trial.
Darren Varley: Alberta RCMP Constable Mike Ferguson was charged with second-degree murder in the 1999 jail cell death of Mr. Varley, who had earlier been arrested for public drunkenness in southern Alberta. Two of Constable Ferguson's trials ended in hung juries; he was convicted of manslaughter with a firearm in a third trial and was sentenced to four years in prison.
Otto Vass: On Aug. 9, 2000, four Toronto officers were called to remove Mr. Vass from a 7-Eleven after he got into a fight. He punched an officer and, as police struggled to subdue him, collapsed and died. Doctors later determined that a fat embolism released into his lungs had caused his death. The four officers were found not guilty of manslaughter at trial more than three years later.
- Kim Mackrael, with a report from Adrian Morrow
Editor's note: An earlier version of this story incorrectly spelled the name of lawyer Bob Morrison. This online version has been corrected.
Colin Freeze
Oliver Moore