Lawyers make closing arguments in OPP officer's manslaughter case

Did OPP Const. Sean O'Rourke trip and fall into the car of Nicholas Grieves, causing his gun to go off? Or was that all a lie to cover up O'Rourke's alleged carelessness — that he never should have drawn and pointed his gun and allowed his finger to come onto the trigger?

Lawyers for both the defence and the Crown presented these competing versions of events on Friday in closing arguments at the conclusion of the seven-day manslaughter trial in the Chatham Superior Court of Justice. 

Grieves, 24, was shot and killed in July 2021 after stealing $40 of gas from a Dutton gas station. 

Much of the evidence and testimony in the trial has centred on the 87 seconds between when O'Rourke made the decision to turn on his police vehicle lights to stop the car carrying Grieves and two other people and the moment Grieves was shot. 

Defence lawyer Sandy Khehra said the physical evidence and the basis for O'Rourke's actions was clear. 

"We cannot expect our police officers to just back off every time there is a situation," Khehra said, positing that any member of the public would expect O'Rourke to act as he did in that situation. 

"Officer O'Rourke is not the one that created that situation, he reacted to the situation …. Here we are taking two weeks to dissect those 87 seconds."

Khehra also drew on the location of the shell casing from O'Rourke's gun — inside the front passenger foot well of the car — as evidence that O'Rourke had tripped and stumbled to come head and shoulders inside the car in the seconds before the gun went off.

He also noted the dirt on O'Rourke's pants as further evidence of the stumble. 

The closing submissions of Crown attorney Jason Nicol were longer. 

Nicol argued that it was never reasonable for O'Rourke to have drawn, much less pointed, his firearm, and that the gun could only have gone off as a result of O'Rourke pulling the trigger. 

During his testimony, O'Rourke said Grieves rammed his police vehicle, an action he described as violent, intentional and something that increased the danger of serious harm or death O'Rourke perceived in the situation. The court had heard that serious bodily harm or death was the criteria for police use of force. 

But Nicol posited the ramming had never happened, and that instead contact between the two cars was incidental and the damage on O'Rourke's car was not significant enough to have come from such a collision. 

That suggestion prompted stern words from the judge. He acknowledged the alleged ramming was a significant piece of evidence in the case but that accident reconstruction was not completed by the Special Investigations Unit, the police watchdog that investigated the case, or the OPP.

"We have a civilian shot to death in the median by a police officer and we have no accident reconstruction," Justice Bruce Thomas said.

"It's ridiculous. I am critical of that."

Nicol told the court he believed O'Rourke had exaggerated the risk, ignored the innocent possibilities behind the incident and that "it was not reasonable for him to draw his firearm." 

Even if the judge found it was reasonable for O'Rourke to have drawn his firearm, Nicol said, there was no reason to point it at Grieves and "that was the accused's greatest overreaction in this incident."

Khehra said he disagreed. 

Nicol also suggested that O'Rourke had not stumbled and instead, that he fired the gun from outside the car, not inside as he had told the court. 

"I cannot see how you can find a stumble doesn't happen," Khehra said in response. 

Thomas interjected at points with questions and statements for each of the lawyers. 

"It means this officer had to react in a very short period of time … the other side of the cutting edge, is did he need to?," Thomas said of the 87 seconds during which the incident unfolded. "That's part of my decision."

Court will return on June 24 for the judge's decision in the case.