Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. This information may include, but is not limited to, the following:

  • subject officer name(s)
  • witness officer name(s)
  • civilian witness name(s)
  • location information
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Director’s report

Notification of the SIU

On Monday, February 20, 2012, at 1108 hrs, Notifying Officer of the Toronto Police Service (TPS) notified the SIU of Mr. Frank Anthony Berry’s firearm injury. According to Notifying Officer, on February 20, 2012, at about 1040 hrs, TPS officers of the 11 Division Major Crime Unit were investigating a man, now known to be Mr. Frank Anthony Berry, in the area of a location. Toronto. There was an interaction between Mr. Berry and the police. Mr. Berry was shot and transported to St. Michael’s Hospital (SMH). Following initial notification and deployment of the SIU at 1132 hrs, Mr. Berry was pronounced deceased at SMH by Dr. Doctor, at 1200 hrs.

Overview

On February 20, 2012, at about 1030 hrs, the occupant of a home at a location, Toronto, now known to be Civilian Witness #11, observed Mr. Berry breaking into a parked car near a location. Civilian Witness #11 alerted her boyfriend, now known to be Civilian Witness #10, and her brother, now known to be Civilian Witness #12, who were in Civilian Witness #11’s home at the time.

Civilian Witness #10 and Civilian Witness #12 approached Mr. Berry. Mr. Berry was wearing outdoor clothing appropriate for the season, a black head-covering commonly referred to as a balaclava, and sunglasses. He had scissors that were about seven inches long in one of his hands. Mr. Berry told Civilian Witness #10 and Civilian Witness #12 to back off, then ran north on Perth Ave. with Civilian Witness #10 and Civilian Witness #12 in pursuit.

Mr. Berry ran a short distance north on Perth Ave. before changing his direction to a northeast bearing. By traversing several alleys, backyards and fences, Mr. Berry eluded Civilian Witness #10 and Civilian Witness #12. Civilian Witness #12 became separated from Civilian Witness #10 when Civilian Witness #10 was unable to mount one of the fences.

Civilian Witness #12 continued pursuing Mr. Berry to the intersection of Campbell Ave. and Antler St., where he encountered Mr. Berry interacting with TPS Subject Officer and Witness Officer #5 who were in the area conducting an unrelated undercover investigation.

Mr. Berry brandished the scissors in the direction of Subject Officer and Witness Officer #5, and swung them at Civilian Witness #12. Subject Officer and Witness Officer #5 drew their 40 calibre, Glock Model 22 semi-automatic pistols. While pointing their firearms at Mr. Berry, Subject Officer and Witness Officer #5 identified themselves as police officers and ordered Mr. Berry repeatedly to stop and to drop the knife, that was later determined to be scissors.

Instead of complying with the officers’ orders, Mr. Berry ran north on the west side of Campbell Ave., then west into the narrow passage-way between ----redacted and ----redacted Campbell Ave. with Subject Officer and Witness Officer #5 behind him.

When Mr. Berry found his route of escape impeded by a fence and gate at the west end of the passage-way, Mr. Berry turned and went toward Subject Officer while thrusting the scissors at Subject Officer. Subject Officer discharged his firearm twice at Mr. Berry. Mr. Berry dropped to his knees and fell forward on his torso, still holding the scissors in his right hand.

Witness Officer #5 eased past Subject Officer and kicked the scissors from Mr. Berry’s hand, and used his portable radio to summon an ambulance.

Mr. Berry was transported to SMH by ambulance, where he succumbed to the two gunshot wounds to his torso.

The investigation

On February 20, 2012, five SIU investigators and three forensic investigators (FI) were assigned to this investigation. The first investigator arrived at the scene at 1247 hrs, on February 20, 2012, and found the scene secured by uniformed officers of the TPS.

SIU investigators interviewed civilian and police witnesses, conducted a canvass for additional witnesses, and searched for closed circuit television images relevant to the incident.

The SIU FI made a digital photographic record of the scene, collected physical evidence, and seized exhibits relevant to the incident. The FI took measurements and completed a scale drawing of the scene.

The firearm with one cartridge from its chamber, and its magazine with 11 cartridges, and the two projectiles recovered from Mr. Berry’s torso during the post-mortem examination, were submitted to the Centre of Forensic Sciences (CFS), with the clothing worn by Mr. Berry, for examination and tests to determine among other factors, the distance between the muzzle of Subject Officer firearm and Mr. Berry’s clothing.

The Scene

The avenues, laneways and streets that featured in the incident involved Campbell, Perth, Wallace and Symington Avenues, having north/south bearings, and Antler St., having an east/west bearing, and two, un-named laneways parallel to and between Campbell and Perth Avenues.

The dwellings at ----redacted and ----redacted Campbell Ave. were separated by a narrow passage-way in which Mr. Berry, while armed with hair stylists’ scissors, confronted Subject Officer who was armed with a TPS issued 40 calibre, Glock Model 22 semi-automatic pistol.

A number of items were found lying on the concrete passage-way, including sunglasses, hair stylists’ scissors, fabric and leather gloves, a balaclava, keys, blood stains and two cartridge cases. There were two distinctive blood stains on the concrete at the west end of the passage- way in close proximity to several items of medical debris.

There was a footprint in the soft soil of the lawn directly in front of the opening between the dwellings adjacent to the west sidewalk that lay parallel to the street.

A second, relevant scene was located at ----redacted Perth Ave. where a bicycle, a backpack, and a bicyclist’s helmet were discovered and protected by the TPS for the SIU. A vehicle parked on the street in front of ----redacted Perth Ave. exhibited a broken rear passenger window. Pieces of vehicle window glass were observed on the rear seat of the vehicle and ground beside it.

The bicycle, through investigation was associated with Mr. Berry, as one of the keys found in the passage-way under Mr. Berry’s gloves operated the lock device attached to the bicycle.

Based on information obtained in the course of this investigation and provided by the TPS, Witness Officer #1, Witness Officer #2, Witness Officer #3, Witness Officer #4, Witness Officer #5, Witness Officer #6 and Witness Officer #7, and Witness Officer #8 and Witness Officer #9 were designated as witness officers.

Subject Officer was designated as the subject officer.

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

  • Communications audio recordings; Drawings by Drawings by Witness Officer #1
  • Drawings by Subject Officer and Witness Officer
  • Drawing by Witness Officer #3
  • Event #----redacted
  • Event #----redacted
  • Firearm Discharge Report
  • Intergraph Computer Assisted Dispatch (I/CAD) reports ----redacted,----redacted, ----redacted, ----redacted,----redacted, ----redacted, and ----redacted
  • I/CAD E911 call reports #02301 and 02380
  • Sensitive Personal Information
  • Sensitive Personal Information
  • Photographs by the TPS Forensic Identification Service (FIS)
  • Memorandum book notes authored by the subject and witness officers
  • Policy and Procedure #10-06 Emergencies and Hazardous Incidents
  • Policy and Procedure #15-01 Use of Force and Equipment
  • Scene Log, and
  • Training records for Subject Officer

The following witness officers were interviewed on the dates indicated:

  • Witness Officer #1 (February 20, 2012)
  • Witness Officer #2 (February 20, 2012)
  • Witness Officer #3 (February 20, 2012)
  • Witness Officer #4 (February 20, 2012)
  • Witness Officer #5 (February 20, 2012)
  • Witness Officer #6 (February 20, 2012)
  • Witness Officer #7 (March 23, 2012)
  • Witness Officer #8 (March 23, 2012)
  • Witness Officer #9 (February 20, 2012)

The subject officer, Subject Officer, was interviewed on March 6, 2012.

The SIU obtained and reviewed the following materials and documents:

  • Sensitive Personal Information, and
  • Drawing by Civilian Witness #6

The following civilian witnesses were interviewed on the dates indicated:

  • Civilian Witness #1 (February 20, 2012)
  • Civilian Witness #2 (February 20, 2012)
  • Civilian Witness #3 (February 20, 2012)
  • Civilian Witness #4 (February 20, 2012)
  • Civilian Witness #5 (February 20, 2012)
  • Civilian Witness #6 (February 20, 2012)
  • Civilian Witness #7 (February 20, 2012)
  • Civilian Witness #8 (February 20, 2012)
  • Civilian Witness #9 (February 20, 2012)
  • Civilian Witness #10 (February 20, 2012)
  • Civilian Witness #11 (February 20, 2012)
  • Civilian Witness #12 (February 20, 2012)
  • Civilian Witness #13 (February 21, 2012)

Confidential witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

In my view, there are no reasonable grounds to believe that the named subject officer, Subject Officer, committed a criminal offence in relation to the firearm death of Mr. Berry on February 20, 2012. Subject Officer provided a voluntary statement to the SIU which squares with other statements and the forensic evidence. On that basis, I am satisfied that I have enough information to draw the following conclusions.

In the morning of February 20th, the decedent, Mr. Berry, broke a car window in the vicinity of ----redacted Perth Ave. Two residents in the area witnessed his action and began to follow him. He walked southbound on Perth Ave. wearing a full ski mask and army-styled pants with the cuffs tucked into his boots when he was first seen by the subject officer, Subject Officer. Subject Officer was in plainclothes and conducting surveillance in an unrelated investigation. The subject officer was briefed about the window breaking by the two residents when Mr. Berry was observed jumping a fence and landing in a backyard of a house on the west side of Symington Ave. Subject Officer drove over to Symington Ave, and saw Mr. Berry in the laneway between Antler St. and Campbell Ave. He approached Mr. Berry, and announced that he was a police officer. Mr. Berry jumped over another fence and into a backyard of a house on Campbell Ave. Subject Officer returned to his car and drove to the corner of Campbell Ave. and Antler St. where he saw Mr. Berry standing at that location. He was joined by Witness Officer #5 who was driving a separate vehicle. Both officers exited their vehicles and began walking toward the decedent. Subject Officer said, “Police, you’re under arrest.” Subject Officer saw what he thought was a knife in Mr. Berry’s right hand (the object turned out to be a pair of scissors) which he waved at the officers. The two officers backed up, drew their handguns and started yelling at him to put the knife down. Instead of complying, Mr. Berry turned and started running north on Campbell Ave. with the two officers in hot pursuit. At a point slightly north of Antler St., Mr. Berry turned and ran in a westerly direction into a narrow passageway between two houses. He attempted to scale a five foot fence at the end of the passageway but was unsuccessful. The two officers closed in on Mr. Berry and continued to yell at him to drop his knife. Mr. Berry turned towards them, and made a jabbing motion toward the subject officer from a distance of approximately five feet. According to Witness Officer #5 who was behind Subject Officer, Mr. Berry closed in on Subject Officer. Subject Officer discharged his firearm twice in the direction of the decedent. Both bullets entered his torso, causing his death. The officers approached Mr. Berry as he was lying on the ground. It was only then that he realized that Mr. Berry was holding a pair of scissors and not a knife.

I am of the view that the subject officer was justified in the use of lethal force causing the death of Mr. Berry in these circumstances pursuant to s. 34 of the Criminal Code. After being told on multiple occasions to drop his knife, Mr. Berry advanced toward the subject officer at a distance of less than five feet with an edged weapon in a narrow laneway. In my view, on these facts, Subject Officer would have a reasonable apprehension of imminent death or grievous bodily harm to himself. Further, given the proximity between the subject officer and the decedent, he had no reasonable opportunity to retreat. As a result, I have no grounds to believe that the subject officer committed a criminal offence when he discharged his firearm causing the death of Mr. Berry.

I intend to add the following to the chief’s letter:

There was an apparent breach of s. 5 of O. Reg 267/10 to the Police Services Act in relation to his incident. The SIU was notified of the incident at 1108 hrs and SIU investigators were dispatched to the scene at 1132 hrs on February 20, 2012. Notifying Officer and Non-Witness Officer, Witness Officer #1 and Witness Officer #8 commenced a ‘walk-through’ of the shooting scene at 1214 hrs with Witness Officer #8 in receipt of instructions from Notifying Officer to make photographs of the primary scene. Witness Officer #8 made 19 known photographs of the shooting scene until 1245 hrs, when Notifying Officer issued Witness Officer #8 further instructions to attend and photograph the scene involving the broken car window. Witness Officer #8 took a further 29 photographs at that scene between 1304 and 1321 hrs. The SIU lead investigator arrived at the shooting scene at 1247 hrs, and spoke to Notifying Officer at 1309 hrs. Notifying Officer informed the lead that the TPS had no criminal investigative interest in the incident because Mr. Berry was dead (he was pronounced deceased at hospital at 1200 hrs). He/She further informed the lead that both scenes were secured, but did not tell him/her that TPS forensics had previously entered and documented both scenes.

In my view, this is a clear breach of s. 5 of the SIU regulations which mandates the SIU to be the lead investigator in these circumstances. I would be grateful if you inquired into this matter and provided my office with a written response. If you require further documentation of this apparent breach, we would be happy to assist.

Original signed by

Date: May 4, 2012

Ian Scott
Director
Special Investigations Unit