SIU Concludes Investigation into Firearm Death Involving the Toronto Police Service
Case Number: 08-TFD-036
Other News Releases Related to Case 08-TFD-036
"In my view, there are no reasonable grounds to believe that the subject officer committed any criminal offence," concluded SIU Director, Ian Scott. "The officer drew his firearm while involved in the apprehension of 42-year-old David Fetterly, who had broken into a pharmacy in the middle of the night wearing a balaclava."
On Saturday March 8, 2008 at approximately 3:50 a.m., a Toronto Police officer on patrol heard an alarm sounding from the Solarski Pharmacy at Roncesvalles Avenue and Garden Avenue. After discovering that the front door had been pried open, the officer observed an individual inside. The officer entered and ordered a man, later identified as Mr. Fetterly, to surrender. The officer drew his pistol and then became involved in a struggle, during which he also drew his baton. Mr. Fetterly refused the officer's commands to stop resisting despite multiple baton strikes his body.
"Mr. Fetterly resisted and attempted to evade arrest by moving quickly to the front door where he turned around and grabbed the officer's right wrist," noted Mr. Scott. "The officer, who was holding his firearm in his right hand, responded by pulling and twisting his arm in an attempt to break Mr. Fetterly's hold. Unfortunately, the officer's firearm discharged unintentionally during this time, striking Mr. Fetterly in the right side of his back."
Mr. Fetterly walked outside and collapsed on the sidewalk. The officer performed CPR on Mr. Fetterly, who was taken to St. Michael's Medical Centre where he died as a result of the wound.
Commenting on the legal issue of criminal liability based on careless use of a firearm leading to a death, Mr. Scott found: "In the circumstances of this case, I am of the opinion that the use of the firearm was not careless. The subject officer had every right to initially draw his weapon and, given the rapidly changing situation, had no opportunity to re-holster. Further, given the fact that the officer was attempting to arrest an individual involved in stealing from a pharmacy in the middle of the night and who was wearing a balaclava and dark loose clothing, he could reasonably form the belief that Mr. Fetterly might be armed."
The probe by the SIU was conducted by a team of seven field and forensic investigators, who examined the scene, canvassed the neighbourhood and posted a public appeal for witnesses. Four civilians, who live in the immediate area and were awakened by the pharmacy's security alarm, were interviewed as were the subject officer and seven witness officers. Ballistic tests were carried out at the Centre of Forensic Sciences in Toronto. The SIU investigators reviewed documents and records from the Toronto Police Service including communication tapes, the duty notes of all the officers involved and the use-of-force training record for the subject officer.
The SIU is an arm’s length agency that investigates reports involving police where there has been death, serious injury or allegations of sexual assault. Under the Police Services Act, the Director of the SIU must
- consider whether an officer has committed a criminal offence in connection with the incident under investigation
- depending on the evidence, lay a criminal charge against the officer if appropriate or close the file without any charges being laid
- report the results of any investigations to the Attorney General.