News Release

News Release

SIU Concludes Toronto Firearm Death Investigation

Case Number: 12-TFD-057   

Mississauga (4 May, 2012) --- The Director of the Special Investigations Unit (SIU), Ian Scott, has concluded that there are no reasonable grounds to charge a Toronto Police Service officer with a criminal offence in regards to the shooting death of 48-year-old Frank Anthony Berry in February of 2012.

The SIU assigned five investigators and three forensic investigators to probe the circumstances of this incident.  Ten witness officers and thirteen civilian witnesses were interviewed, and the subject officer consented to an interview with the SIU.  Forensic investigators made a digital photographic record of the scene, collected physical evidence, and seized exhibits relevant to the incident.

The SIU investigation found that the following events took place on Monday, February 20:

• At approximately 10:30 a.m., Mr. Berry broke a car window on Perth Avenue.  Two residents in the area witnessed his action and began to follow him.  He was wearing a full ski mask and army-styled pants with the cuffs tucked into his boots.

• The subject officer, who was in plainclothes and conducting surveillance in an unrelated investigation, was in his unmarked cruiser when he saw Mr. Berry walking southbound on Perth Avenue, and two men running in the same direction.  Suspicious, he followed them.  He tracked the trio to a laneway between Perth and Symington Avenues, and was at that time told about the window breaking.  Suddenly, Mr. Berry jumped a fence and landed in the backyard of a house on Symington Avenue. 

• The subject officer, who was now joined by another officer, followed Mr. Berry for some time as he weaved in and out of streets and continued to jump over fences.  At one point, when the officers were about five feet away from Mr. Berry, he brandished a pair of scissors (at that time thought to be a knife) and waived them in front of the officers in an aggressive manner.  The officers backed up, drew their firearms and yelled “Put the knife down, we are the police, it’s over” and “You are under arrest”.  However, Mr. Berry ran away.

•  A short time later, the officers saw Mr. Berry run into a narrow passage-way between two houses on Campbell Avenue.   They followed him.  Mr. Berry attempted to scale a five-foot fence at the end of the passage-way but was unsuccessful.  The two officers closed in on him 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.  The subject officer discharged his firearm twice in Mr. Berry’s direction.  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 they saw Mr. Berry was holding a pair of scissors and not a knife. 

Director Scott said, “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, the 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.”

 

The SIU is an independent government agency that investigates the conduct of officials (police officers as well as special constables with the Niagara Parks Commission and peace officers with the Legislative Protective Service) that may have resulted in death, serious injury, sexual assault and/or the discharge of a firearm at a person. All investigations are conducted by SIU investigators who are civilians. Under the Special Investigations Unit Act, the Director of the SIU must

• consider whether the official has committed a criminal offence in connection with the incident under investigation
• depending on the evidence, cause a criminal charge to be laid against the official where grounds exist for doing so, or close the file without any charges being laid
• publicly report the results of its investigations