Why is shooter’s birthdate too personal to make public?
Idon’t pretend that this is the only thing about Faisal Hussain that Toronto police and Ontario deputy Crown attorney John Scutt want to keep secret — his birthdate, for God’s sakes — but it is the most telling.
As a goodly portion of the Western world knows by now, Hussain was 29 when on July 22, he walked along several blocks of Danforth Avenue in Toronto’s east end and shot at groups of people enjoying the warm summer evening on sidewalk patios.
He killed a young woman, 18-year-old Reese Fallon, and a 10-year-old girl, a competitive synchronized swimmer named Julianna Kozis, and injured 13 others. Then, he exchanged gunfire with Toronto police and was dead of a gunshot wound shortly after. Multiple sources have said the lethal wound was self-inflicted, but that aspect of the shooting is under investigation by Ontario’s Special Investigations Unit (SIU), which probes all encounters with police in the province that end in death or serious injury (and often, those which do not involve serious injury and occasionally even any injury at all, a fact which, bewilderingly, sometimes takes the unit weeks to discover).
Why on earth revealing Hussain’s actual birthdate — was he a Taurus or an Aquarius? — would be of interest to anyone but astrology buffs remains unexplained. Other blacked-out details on the application to obtain a search warrant that Scutt seeks to protect are the birthdates of Fallon and Kozis.
Yet that very information was contained in a published family obituary about the young woman (she was born Jan. 31, 2000) who was supposed to have headed off to nursing school this fall. Scutt was in Superior Court Friday in downtown Toronto to oppose a media application that would see three search warrant applications (formally called Informations to Obtain a Search Warrant, or ITOs) in the case of the Danforth shooter unsealed and made public.
A coalition of media organizations, including The New York Times, CBC, The Globe and Mail and Postmedia and represented by Paul Schabas and Kaley Pulfer, was arguing before Judge David Corbett that the police were relying on general claims of potential disadvantage — the usual claims, in other words — to support a bid to keep the ITOs under wraps. The usual reasons, which Schabas said are cited routinely to keep secret information that the law says presumptively should be public, are to protect the integrity of an “ongoing investigation,” “innocent third parties” and police “investigative techniques.”
But that, Schabas said, “is just not good enough.”
Just as police are supposed to have reasonable and probable grounds to get a search warrant approved by a justice of the peace or a judge in the first place, so should they be required to explain why the information in the warrant shouldn’t be disclosed publicly.
The presumption, Schabas said, is in favour of openness, but “in practice, that’s been turned on its head because police officers go in and ask for them (sealing orders) routinely and JPs ( justices of the peace) grant them … This has become a practice and it’s fundamentally in opposition to the law.”
There is sometimes a genuine issue, where police, for instance, are investigating a case such as the murders of Barry and Honey Sherman, where there has been no arrest of a suspect and disclosure of an ITO, with details of what steps the police are taking or tactics they’re trying, could tip off a suspect.
There, the public interest in seeing police conduct a successful investigation would likely outweigh the public interest in open courts. As Scutt told the judge, “The public has to have confidence in police, especially with serious crime,” and “having their entire investigative theory laid bare a few days later (after they get a search warrant)” only complicates their already difficult job.
But how does that apply to the Hussain case?
As the judge said at one point Friday, pointing to the blackedout Hussain date of birth, “For example, this man’s birthday … how could that…?” Corbett shrugged, clearly meaning, how could that have any effect upon anything? Scutt began to reply that the date of birth was a “personal detail” when Corbett interrupted him and said, “Of the deceased shooter?”
Two of the warrants were for police to search the family apartment in Thorncliffe Park where Hussain lived (the first was refused, it appears for a technical reason), while the third saw police search one of its own property rooms for reasons that were blacked out.
Scutt used an affidavit of Det.Sgt. Terry Browne, the lead investigator in the Hussain case.
He said police still needed the ITO sealed because while Hussain is dead, they are still investigating why he shot up the street, how he got the gun, whether anyone assisted him, and the role his mental health may have played. Browne also said police need more time to review the extensive video surveillance and are still waiting for “other agencies” to respond to requests for information. He estimated the probe would continue “for several months.” Corbett reserved his decision, but said he would try to have one next week.
Watching it all from the body of the court was Alexandra Clark, a lawyer with the Ministry of the Ontario Attorney General, who was there, she acknowledged, on behalf of the SIU — the unit whose delicate pace in investigating Hussain’s death is probably the single greatest reason, ITOs notwithstanding, for the slow flow of information to the public. Until the SIU completes its piece of the pie, Toronto police are severely hamstrung about what they can say.
And, as SIU spokeswoman Monica Hudon told me last week, 40 days after the shooting, the unit has still not designated a “subject officer,” meaning the officer or officers who may have fired their weapons.
Good grief.