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The Globe and Mail

Crown aims to resurrect criminal charge against police constable

In a move sure to infuriate the Toronto Police Association, prosecutors are seeking to bring Constable David Cavanagh back to court on a charge of manslaughter.

Toronto Police Service

Elation swept through Toronto police circles in March when a judge overseeing a preliminary hearing dismissed a second-degree murder charge against one of their colleagues, on grounds there were insufficient grounds to proceed.

The relief, however, may be short-lived.

In a move sure to infuriate the Toronto Police Association, prosecutors are seeking to bring Constable David Cavanagh back to court on a charge of manslaughter.

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TPA president Mike McCormack said Wednesday he was dismayed but not surprised at the Crown's bid to resurrect criminal charges, adding that it flies in the face of perceptions that police get preferential treatment within the justice system.

Murder charges against police acting in the line of duty are extremely rare, and in Toronto appear to have no precedent.

By the time he was cleared of this one on March 1, Constable Cavanagh had already undergone a roller coaster ride in the September, 2010 death of 26-year-old Eric Osawe, a Nigerian-born father of two, shot dead in a drugs raid on a west Toronto apartment.

Initially Constable Cavanagh was charged with manslaughter by the Special Investigations Unit, which probes all police-civilian interactions resulting in death or serious injury Then, in February 2012, the charge was upgraded to second-degree murder, implying the homicide was intentional, rather than an accident.

In throwing out the murder charge, however, Provincial Court Justice Michael Block said he had trouble sharing the Crown's view that Constable Cavanagh, a member of a heavily armed Emergency Task Force unit that burst through the apartment door, deliberately killed Mr. Osawe during a struggle.

And the judge also acquitted the officer on the lesser, included offence of manslaughter, concluding there was no evidence he carelessly handled used his MP5 submachine gun.

The 36-year-old officer was exhilarated with the outcome, saying outside court that his journey through the legal system represented "three years of my life that I'm not going to get back … I still feel I'm in a dream."

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Then came word Tuesday night, just inside the 30-day window for launching an appeal, that the Crown wants to overturn the judge's ruling and will seek leave to appeal it in a hearing April 22.

Constable Cavanagh remains with the ETF, assigned to its intelligence unit.

"He's very frustrated, he's been through the prelim, he's seen what they're putting forward and now he's looking forward to getting this thing done," Mr. McCormack said after speaking to Constable Cavanagh.

"The reason I'm not surprised (at the possible revival of charges) is because of the Crown's treatment of this case through the whole process, including the upgrading of the original manslaughter charge for some unknown reason. (Judge) Block's comments were scathing… "It's been frustrating from the get-go because of the void of information surrounding this case. We'll continue to fight on his behalf… here we are again."

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