HUNG JURY PUTS SHANK IN SHOOTING CASE LIMBO

Detective will hear Nov. 18 whether he faces new trial

For Toronto Detective-Constable Rick Shank, the trials continue.

Sixteen months after being charged with manslaughter in the shooting death
of suspected crack dealer Hugh Dawson, Shank learned yesterday that a jury
could not reach a decision after deliberating for four days.

After sitting in court for six weeks, he now faces another court appearance
Nov. 18 and the prospect of another trial, perhaps months away.

Shank's trial ended quickly yesterday afternoon, when Mr. Justice Eugene
Ewaschuk of the Ontario Court, general division, was given a handwritten
note by the six-man, six-woman jury:

``Your Lordship, after a further review of the evidence, the jury has been
unable to arrive at a consensus.''

The jurors had to reach a unanimous decision to render a verdict. With
that, Ewaschuk dismissed the jury.

The decision as to whether Shank will be tried again will be made public by
the crown law office of the Ministry of the Attorney-General when Shank
appears again in court in 11 days.

Dozens of police officers - including Chief David Boothby - had jammed the
courtroom and groaned as Ewaschuk discharged the jury, telling them they
had done their very best to decide a difficult case.

Shank's colleagues immediately formed a protective cordon around the
seven-year veteran of the force.

As he headed down the courthouse escalator with one of his lawyers, Peter
West, a grim-looking Shank refused to comment to reporters, but finally
relented and said: ``Tie goes to the winner.''

He wouldn't elaborate.

Outside court, Boothby, who had come to the courthouse in a show of support
along with other high-ranking officers such as Deputy Chief Bob Kerr,
expressed disappointment at the outcome.

But the chief reiterated his faith in Shank, 29, who had pleaded not guilty
to manslaughter in the March 30, 1997, takedown by seven undercover
officers that led to Dawson being shot nine times.

``I'm disappointed that they couldn't reach a verdict, however, I have
faith in the system,'' Boothby said. ``Constable Rick Shank has faith in
the system and I certainly have faith in Constable Rick Shank.''

Boothby said the lack of a verdict would have absolutely no effect on the
morale of the force, which he said was ``very high.''

He also wouldn't comment on whether regulations surrounding high-risk
takedowns by police that were raised during the trail would be changed.

Craig Bromell, the president of the 7,000-member police union, said if
Shank has to face another trial, it will have a negative effect on
frontline troops.

``This has affected morale . . . it's low,'' Bromell said. ``But we've got
a good police force and they'll still stick together and perform their
duties.''

Crown attorney Sandy Tse, who prosecuted Shank along with AimE9e Gauthier,
said: ``I think it's sad when we can't come to a legal conclusion as to the
conduct here.''

The looks on the faces of people who jammed the courtroom after the abrupt
end to the proceedings around 2:40 p.m., was in stark contrast to the
excitement about 40 minutes earlier when word came back that the jury had
arrived at a verdict.

Within moments, the courtroom was packed. As Shank chatted at the front of
the courtroom with one of his lawyers, Shank's wife Nicole, a Waterloo
Region police officer, buried her face in her hands and leaned her head
against the front-row banister.

When Ewaschuk entered the courtroom and began to read from a handwritten
note from the jury foreman, Shank showed no emotion, while Nicole quietly
wiped a tear.

Both prosecutor and defender were then canvassed for their opinions.

Shank's lawyer, Austin Cooper, walked over to Shank, who was in the
prisoner's box, and they chatted for a few moments. Shank then stood up and
bowed to the judge, and Cooper told the court: ``My instructions are that
perhaps enough is enough.''

``I don't think we can fairly ask any more of (the jury),'' said crown
attorney Tse, as Shank could be seen shaking his head in disappointment.

When the jury was called in to be discharged, one juror in particular was
visibly agitated, shaking his head constantly, and looked intently at
Shank. When the two made eye contact, the juror smiled and Shank smiled
back at him.

Other jurors refused to look at Shank, or the courtroom, and quickly left
after the judge dismissed them. They had been warned not to discuss what
happened during the deliberations with anybody.

The Star contacted two jurors after the verdict, to ask them about their
feelings, not their deliberations.

One juror couldn't hide his frustration.

``I'm upset by the fact that we couldn't come up with a verdict, but I am
pleased with the way I have arrived at a verdict,'' said the male juror who
requested anonymity.

``It was very exhausting. I think we had exhausted every possible avenue
and it's just unfortunate we couldn't come up with consensus,'' he told The
Star.

Another juror said his conscience was clear.

``I feel at ease with my conscience, because personally I feel I have done
my best to serve justice,'' said Edward Valez, a Toronto millwright.

``I have done my best to look at the situation as an open-minded (person)
without any influence from my past experience.''

Absent from the crown's case against Shank during the trial was the fact
that he had killed another suspect. The crown couldn't tell the jury about
that incident because it would have been prejudicial to the accused officer.

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 officers on Brimorton
Dr. in Scarborough. Shank, a patrol officer back then, said he fired only
after Coley pointed a gun at him.

It was the Special Investigations Unit - the civilian agency that charged
Shank in Dawson's death - which investigated and cleared the officer in the
Coley shooting five years ago.

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

Police shootings aren't uncommon in Toronto, but only one other member of
the Toronto police force - Constable Kenneth Harrison - has been involved
in two fatal shootings while on duty. He was cleared of any wrongdoing in
those shootings, which took place in 1985 and 1986.

Shank's defence in the Dawson case was the same justification he used when
he shot and killed Coley back in 1993: He feared for his life.

Defence lawyer Cooper described Dawson as the ``author of his own
misfortune'' for fighting violently to escape police who had no choice but
to kill or be killed.

The story of what happened the night Dawson, 31, was shot and killed came
mainly from the police themselves.

The civilian witnesses who were there when undercover police surrounded
Dawson's car as it sat at the light at Kennedy and Danforth Rds., could not
tell the court what actually happened inside the tight confines of Dawson's
vehicle. They could only describe the chaos outside. Angry men, their guns
drawn, rushing a car and smashing its tinted windows.

Fellow officer Rajeev Sukumaran, a prosecution witness, should have been
able to give the jury the best evidence about what went on in Dawson's
vehicle because he was right in the car and even admitted shooting first.

But when it came time to lay out its theory to the jury, the crown told
them to disregard Sukumaran's story and even questioned the credibility of
the other drug squad officers who took the stand during the month-long trial.

On another occasion, Ewaschuk commented that he felt the witnesses were
being less than truthful in their testimony.

``Obviously, Detective (Keith) Rogers is one of the few people telling the
truth in this case,'' Ewaschuk said in singling out one of the officers who
testified.

The jury was never told that the SIU tried to get wiretaps put on the
officers' home phones during the investigation to see if they were talking
to each other about the case, but the request was denied by a judge.

Ewaschuk's comments about the credibility of police testimony made some
officers in the public gallery cringe, while others appeared visibly upset.

While police in the courtroom may have been offended by the suggestions
that Shank's drug squad buddies had lied to protect Shank, Dawson's family
believes that was, indeed, the case during the trial.

Errol Brown, 28, said he's bitter about losing his brother, but for the
sake of Dawson's two children, who are now in his care, he won't bring them
up in an environment where the police are the enemy.

``I don't want to poison their minds against police officers,'' said Brown,
adding Dawson's children, Chanece, 6, and Andre, 2 1/2, don't yet know how
their father was killed.

Checked-by: Pat Dolan