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 Saturday, March 8, 2008, at 0440 hrs, Notifying Officer of the Toronto Police Service (TPS) notified the SIU that Mr. David Fetterly had been fatally shot during a break and enter incident. Notifying Officer reported that an officer responded to a break and enter in the area of Garden Avenue and Roncesvalles Avenue in Toronto and shortly thereafter Mr. Fetterly had been shot in the chest. Notifying Officer had no further information at the time.

The investigation

The SIU immediately dispatched seven investigators, including three forensic investigators (FI).

The scene of this incident was the Solarski Pharmacy, located at 149 Roncesvalles Avenue. The SIU agreed to allow a TPS Police Dog Services officer to clear the premise in order to rule out any possibility that potentially armed suspects remained inside the premise. The TPS was then excused from the premise and SIU forensic investigators examined the scene. The scene was photographed, videotape recordings were made and evidence was collected. The store was also measured so that a drawing could be prepared.

The neighbourhood in the area of the Solarski Pharmacy was canvassed for witnesses and an appeal for witnesses was posted in the area. On March 8, 2008, SIU investigators interviewed the following civilian witnesses:

  • Civilian Witness #1
  • Civilian Witness #2
  • Civilian Witness #3, and
  • Civilian Witness #4

On March 8, 2008, officers of the TPS interviewed Civilian Witness #5. Confidential Witness Statement The officers were eventually able to convince Civilian Witness #5 to provide a statement but only after telling him/her that nobody else would visit him/her for any further statements. When the SIU attempted to obtain a statement from Civilian Witness #5, he/she refused to provide any statement.

On March 8, 2008, the SIU issued the following officer designations:

  • Subject Officer – subject officer
  • Witness Officer #1 – witness officer
  • Witness Officer #2 – witness officer
  • Witness Officer #3 – witness officer
  • Witness Officer #4 – witness officer
  • Witness Officer #5 – witness officer
  • Witness Officer #6 – witness officer, and
  • Witness Officer #7 – witness officer

The witness officers were interviewed on March 8, 2008 and March 9, 2008. Subject Officer, the subject officer, was interviewed on April 9, 2008.

On March 9, 2008, Dr. Doctor conducted a post-mortem examination of Mr. Fetterly at the Chief Coroner’s building in Toronto.

On March 14, 2008, the SIU submitted, to the Centre of Forensic Sciences (CFS), the clothing worn by Mr. Fetterly, biological samples taken from Mr. Fetterly during the post-mortem examination, the involved police firearm and a single projectile that was found at the scene. Also submitted was a swatch of fabric recovered from inside the pharmacy. The CFS was asked to determine whether blood was present from fingernail clippings taken from Mr. Fetterly and to determine whether any DNA, other than Mr. Fetterly’s, could be recovered from those fingernail clippings. The CFS was also asked to determine whether the swatch of fabric came from Mr. Fetterly’s clothing. Finally, the CFS was asked to examine the officer’s firearm to determine whether it was in working order, whether it was the source of the projectile recovered from the scene and the distance that the firearm was from Mr. Fetterly when fired.

In the course of this investigation, the SIU requested, obtained and reviewed the following materials:

  • The TPS Computer Aided Dispatch (CAD) report
  • A Canadian Police Information Centre (CPIC) report for Mr. Fetterly
  • The TPS duty schedule
  • The duty notes of all designated officers, including the subject officer
  • A copy of the pathologist’s report of the post-mortem examination
  • A number of occurrence reports related to Mr. Fetterly’s past criminal charges
  • A copy of a video-recorded TPS interview of civilian witness Civilian Witness #5
  • The firearm training record for Subject Officer, and
  • The most recent Use of Force training record for Subject Officer

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 any criminal offence with respect to this incident. He reasonably drew his firearm while involved in the apprehension of the decedent, Mr. Fetterly, who was engaged in a break and enter of a pharmacy in the middle of the night while wearing heavy clothing and a balaclava. Mr. Fetterly would not permit himself to be arrested by the subject officer, notwithstanding numerous commands to stop resisting and many blows to his body. He continued to resist and was attempting to evade arrest by moving quickly to the front door of the pharmacy. As they reached the front door, Mr. Fetterly turned around and grabbed the subject officer’s right wrist. Subject Officer responded by pulling and twisting his arm in an attempt to break the hold. Unfortunately, his firearm discharged, causing Mr. Fetterly’s death. I have no reason to believe that the subject officer intentionally shot the decedent. Accordingly, the only other theory of criminal liability would be a charge of manslaughter based upon the unlawful act of careless use of a firearm leading to a death. In the circumstances of this case, however, I am of the opinion that the use of the firearm was not careless because the subject officer had every right to initially draw it, and, in the heat of the moment, no opportunity to re-holster. Further, given the fact Subject Officer was attempting to arrest an individual involved in stealing from a pharmacy in the middle of the night who was wearing dark loose clothing, the officer could reasonably form the belief that the Mr. Fetterly might be armed.

I am troubled by the statement of the subject officer that he was beating Mr. Fetterly on the back of the head with his baton as the latter was attempting to get away. At this point, Mr. Fetterly did not represent a threat to Subject Officer, and blows of this nature could cause grievous bodily harm such that the subject officer would not be protected by ss. 25(4) of the Criminal Code. However, I note in the post mortem report that the pathologist makes no mention of injuries to the head area. I can only assume that these blows did not land on Mr. Fetterly’s head or, if they did, were much lighter than suggested in the subject officer’s statement, and would not satisfy the definition of “grievous”.

While not within my mandate, there are a number of training questions disclosed by this investigation. For example, why did Subject Officer enter this obviously dangerous situation alone? Why was he unable to alert his dispatcher before he entered the building? How could his training cause him to have a gun in one hand and a baton in the other, such that he was incapable of handcuffing Mr. Fetterly? Why was he beating him around his head with his baton when he did not fear for his life? And how did he get so close to Mr. Fetterly that the latter could almost grab his gun? I trust that these questions will be addressed in the context of the Chief’s administrative investigation pursuant to s. 11 of O. Reg. 673/98.

Finally, I intend to bring to the Chief’s attention an apparent breach of s. 5 of O. Reg. 673/98 of the Police Services Act with respect to the Toronto Police Service detectives’ interview of Civilian Witness #5. These detectives must have known that this was an SIU investigation in which the Unit was the lead investigator. In spite of this knowledge, they interviewed the only civilian witness in the vicinity, telling him/her that no one would come to his/her residence in an attempt to take another statement from him/her. By giving him/her this assurance, the Toronto detectives ensured that they completely controlled the interview process and contents because Civilian Witness #5 then refused to speak to the SIU investigators. I will be asking Chief Blair to investigate this apparent breach of the regulations and report back to me.

Date: November 5, 2008

Ian Scott

Director

Special Investigations Unit