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Judge dismisses Joshua McCabe's manslaughter, firearm charges

McCabe was accused of causing the shooting death of Christopher Swanson during a 2018 home invasion at 413 Morin St
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Police on Morin Street on Feb. 10, 2018. James Hopkin/SooToday

The single shot from a hunting rifle that took the life of Christopher Swanson during a 2018 home invasion was fired in self-defence, Superior Court Justice Edward Gareau has ruled. 

"On the totality of the evidence, I conclude beyond a reasonable doubt that the single shot was fired by the accused after providing a warning, and that the shot was fired by the accused for a defensive purpose," Judge Gareau said, dismissing manslaughter and reckless use of a firearm charges against Saultite Joshua Perry McCabe.

In reasons for judgment delivered last week, Gareau ruled that McCabe's warning shot was reasonable under the circumstances and wasn't fired for retribution or retaliation, even though it slammed into Swanson's chest after the man had left the house following the violent home invasion.

The court was told that Swanson was one of three men who burst into the McCabe home at 413 Morin St. during the wee hours of Feb. 10, 2018.

The trio (two of whom were later acquitted of numerous charges related to their involvement) were described as wearing balaclavas and brandishing offensive weapons including a machete and a knife.

Joshua McCabe's father George, known to friends as Perry McCabe, rose from a chesterfield to confront the men and found himself being brutally beaten, stomped and stabbed.

One of the assailants demanded to be given money and dope, and was handed $100.

Joshua was in a bedroom and heard his dad crying for help.

Joshua had been in a car accident when he was four years old and is cognitively challenged, causing him to function at a Grade 7 or Grade 8 level, perhaps less than that.

"In my view, the mental and intellectual capabilities of the accused are also factors that the court should consider in assessing the reasonableness of the actions of the accused," Judge Gareau said.

Joshua appeared from the bedroom with a rifle and asked the intruders repeatedly: "Do you want to get shot, do you want to get shot?"

The judge said two of the invaders were still inside the house when Joshua fired the single shot that went through the front door and hit Swanson outside, first striking his left upper arm, then fatally penetrating his chest.

The situation was described as chaotic, with a lot of alcohol and some joints going down, and beer bottles being thrown.

"It is also fair to conclude on the evidence that the people in the home on the morning of Feb. 10, 2018 and who witnessed the home invasion and the aftermath were in various stages of non-sobriety and intoxication that morning," said Judge Gareau.

"The evidence indicates that all the individuals had been consuming alcohol and that some had consumed drugs, primarily marijuana, as well."

The wounded Swanson was later found outside 413 Morin St. by two women, who drove him to Sault Area Hospital.

Substances including cocaine and fentanyl, were detected in his body.

The hunting rifle that McCabe fired, killing Swanson, was later found in the attic of 413 Morin St..

"There is no issue that the accused Joshua McCabe fired the gunshot that killed Christopher Swanson," Judge Gareau said.

"The primary issue in this case is whether the accused caused Mr. Swanson's death unlawfully."

McCabe told police he didn't aim the shot he fired and he didn't point at any particular person.

He described the shot as being just "a warning, like a warning f*ckin shot. I didn't mean to shoot anybody."

"He was f*cking standing there f*cking I was just aimin' and they were f*cking throwing sh*t at me hiding behind the f*cking corner. Like f*ck. I just wanted them to get the f*ck out. Who did I shoot? Like who, who the f*ck was it? Like I don't even know, man. Everything happened so quick."

"In the end, Christopher Swanson lost his life, tragically, concluding a home invasion which ended badly for him," the judge concluded.

McCabe was represented by Don and Anthony Orazietti.

Walter Trent Wilson acted for the Crown.