FACTS KEPT FROM SECOND SHANK JURY

Crown Wanted Officer Tried On Two Charges

It didn't take the jury long this time around to decide Toronto Constable
Rick Shank was justified when he shot and killed drug dealer Hugh Dawson
during a violent struggle more than two years ago.

But as the six men and six women began deliberating yesterday, some facts
had been kept from them and they weren't aware of the legal battles that
occurred just before the officer's second trial got under way on April 27.

Shank's first manslaughter trial ended in a hung jury last November after
four days of deliberations.

The case presented to the second jury wasn't exactly the same as what the
first jurors heard last year - largely because of what happened in pretrial
arguments before the second trial began.

At issue was the prosecution's attempt to have Shank tried for both
manslaughter and a new charge of criminal negligence causing death.

That charge was laid in March when the crown filed a new indictment against
the drug squad officer.

The crown's theory was that Shank used excessive force in shooting Dawson,
therefore making him guilty of manslaughter, and also showed ``wanton and
reckless disregard'' for the lives of others in his handling of the police
takedown of Dawson. Under that legal definition, Shank was guilty of
criminal negligence causing death, the crown theorized.

But the new charge was attacked by Shank's defence team, which argued the
crown's new indictment was an abuse of process and should be thrown out.
Shank should stand trial only for manslaughter, defence lawyer Austin
Cooper argued before Mr. Justice Paul Forestell of the Superior Court of
Justice.

``There is no room for a criminal negligence charge. It is irrelevant and
unnecessary,'' Cooper said.

He noted that the judge who presided over the first case, Mr. Justice
Eugene Ewaschuk, wouldn't allow the crown to argue that Shank's actions
were both unlawful and negligent.

Cooper also argued that both manslaughter and criminal negligence causing
death carry the same penalty when a gun is involved: a minimum four-year
prison term.

He suggested the crown had laid the second charge to give the jury the
ability to reach a compromise verdict, one that would not seem as harsh as
finding an officer guilty of manslaughter.

``I suggest the purpose was to violate my client's rights,'' Cooper said.

Crown Attorney AimE9e Gauthier argued the new charge did not prejudice
Shank in any way because the crown had not changed its basic theory that
the officer, as ``road boss'' in charge of the takedown on Easter Sunday of
1997, had triggered the events that led to Dawson's death.

In the end, Forestell sided with the defence and quashed the second charge
against Shank, telling the court that Ewaschuk's ruling in the first trial
was right.

So, unlike the first manslaughter trial, there was no mention of criminal
negligence when lead Crown Attorney Sandy Tse made opening statements to
this jury in late April.

The jurors would be allowed to determine only whether Shank was guilty of
excessive force when he repeatedly shot Dawson, not whether his actions in
calling the takedown were reckless.

Also absent from the crown's case the second time was the fact that Shank
fatally wounded another suspect six years ago.

On April 20, 1993, Shank shot and killed Ian Coley, 20, after the young
father fled a car that had been pulled over by police on Brimorton Dr. in
Scarborough.

Shank, then a patrol officer, said he fired only after Coley pointed a gun
at him. The province's special investigations unit cleared Shank in the
Coley shooting five years ago.

He was even praised by former SIU director Howard Morton for courageously
trying to tackle and disarm Coley before having to resort to deadly force.

Only one other Toronto officer, Constable Kenneth Harrison, has shot and
killed two suspects while on duty. He was cleared of wrongdoing in those
shootings, which took place in 1985 and 1986.

Those cases predated the existence of the SIU, which was set up in late
1990 to independently probe incidents where citizens are injured or killed
by police.

Shank was charged in Dawson's shooting in late June, 1997, after a
three-month investigation.

The first jury was also not told about the earlier shooting involving Shank.

While Shank's first trial was filled with drama and marked by often heated
legal battles in the absence of the jury, there was little of that this
time around.

At the first trial, Ewaschuk made comments about the credibility of police
testimony which made officers in the public gallery cringe.

Shank's lawyers complained they weren't getting a fair shake from Ewaschuk
in some instances when they tried to cross-examine witnesses or object to
crown tactics.

Both juries were never told that the SIU tried to get wiretaps put on drug
squad officers' phones during their probe to see if they were talking to
each other about the case, a request that was denied by a judge.