Selwyn: January 2016

By Selwyn A. Pieters, B.A., LL.B., L.E.C.

Lawyer & Notary Public (Ontario, Canada)

Attorney-at-Law (Republic of Guyana, Island of Trinidad)

Pieters at the site
where Yatim was gunned down

On July 27, 2013, Constable James Forcillo a member of the Toronto Police Service, together with several police officers converged on a streetcar that was stopped at Dundas Street and Bellwoods Avenue, in response to an emergency alarm from the Toronto Transit Operator who was driving the 505 streetcar. Yatim was alone in the streetcar having allegedly threatened passengers who were sitting in close proximity to him.

Forcillo issued expletive laden commands to Yatim. Yatim responded with his own expletive laden words. Forcillo fired three shots at Yatim as he allegedly made a step forward on the streetcar in disobedience to Forcello's command. That pathology report stated that the shots fired in this volley killed Yatim. That is not the end of the story. Whilst Yatim fell on the floor of the streetcar and was dying, Constable Forcillo fired six more shots at Yatim. The six shots were not lethal.

Constable Forcillo was arraigned before the Jury and tried for the following offences:

1) Second degree murder;

2) Manslaughter;

3)Attempted murder

4) Aggravated assault.

The first two charges relates to the first volley of three rounds fired at Sammy Yatim on the streetcar whilst he was close to the streetcar door with a knife in his hands. The third and fourth charges relate to the six shots fired after a pause and during the time that Yatim lay helpless on the floor of the streetcar dying.

On January 25, 2015, Constable James Forcillo was found guilty by a eleven (11) member mixed jury in a Superior Court Trial presided over by The Honourable Edward F. Then.

The defence in this case raised the justification for the use of force under section 25 of the Criminal Code and self-defence under section 34 of the Criminal Code. From all appearance the jury accepted the defence contention that there was some doubt that Forcillo's conduct amounted to second degree murder and/or manslaughter.

The jury however accepted the Crown's contention that Forcillo's conduct beyond a reasonable doubt established the specific intent offence of attempted murder. Constable Forcillo therefore was found to have intended to kill Yatim when he fired the six second volley of shots that were not lethal.

In R. v. McArthur, 2004 CanLII 8759, 182 CCC (3d) 230; 19 CR (6th) 38; [2004] OJ No 721 (QL); 184 OAC 108 (ON CA), <http://canlii.ca/t/1gk4v>, Doherty J.A. explains that:

47. Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

48. A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term...

In Ontario, it is rare that police officers who has shot citizens whilst in the line of duty are convicted. In this case, the Crown's strategy to charge on second degree murder was criticized as an overcharge for which conviction by a jury would be a "herculean task". On the other hand, the Crown's splitting the conduct of Constable Forcillo into two distinct component resulted in accountability and the resulting criminal liability with the finding of guilt.

It is reported that Constable Forcillo will be seeking a stay of the proceedings prior to sentencing the principal basis is that he cannot be convicted of a crime when the very basis of the crime is the training he received as a police officer. A state actor raising argument that he is not deserving of a convicting whilst acting on behalf of the state and in the course of his duties as the premise of a stay application is quite novel. However, a stay is an exceptional remedy that is rarely granted. So there is little to no reason to believe this argument will prevail.

Sage advise

In this criminal prosecution the objective video and audio evidence, the testimony of numerous eye witnesses and the pathology report made a different. The finding of guilt, in my view, makes it clear that a badge, gun and state power is not a licence to kill. Police officers are required to exercise sound judgment, mental discipline and respect the right to life, even when dealing with encounters that could potentially be violent.

The reaction to the verdict on television and on social media, particularly twitter, was stark and contrasting:

Toronto Police Association President Mr. Mike McCormack expressed his disappointment, stated that the verdict created a chill and that a stay will be sought on the basis that Constable Forcillo acted consistent with his training.
Toronto Police Service Chief Mark Saunders, was combative and surly in his presser. He contradictory to Mike McCormack, praised the superior system of training that Toronto Police has for its officers. He refused to answer some of the questions posed to him by journalists. He announced that Forcillo would be suspended with pay pending the outcome of the criminal justice process.
Julian Falconer, counsel to the mother of Sammy Yatim, triumphantly thundered that the era of police impunity has come to an end. No longer is the police word against a hapless citizen’s but the police evidence not has to be squared against objective video and photographic evidence and its credibility is assessed on that basis.
Jeff Hershberg ‏@LawyerToronto Criminal Defence Lawyer “The police often tout video surveillance as amazing and proves guilt. When posted online in #Forcillo case, it's trial by YouTube.”
Chris Marriott ‏@chrismarriott “The absurdity of Canadian "Justice": Convicted of attempted murder when you're on video actually committing murder.”
Wendy Gillis, Journalist “No matter which way #Forcillo decision goes, verdict is hugely significant for police accountability, police use of force & video evidence.”
Desmond Cole ‏@DesmondCole “Every day, people who work with the public de-escalate dangerous situations without guns, without killing.”
Andray ‏@AndrayDomise “If anything is "chilling" about any of this, it's what the mouthpiece of TO officers just told us about their mindset.”

Police officers do need to think before they shoot. Police officers do need to resort to less lethal options in the use of force continuum and escalate only as necessary. Police officers need to de-escalate rather than escalate situations. Those are the implications of a guilty finding in this case on criminal liability.

It can be expected however that the the funders of Constable Forcillo's legal team will exhaust all appeal routes to keep him from being convicted and sentence to a lengthy term of penitentiary. A conviction and sentence to jail time will inevitably result in the loss of his employment as a police officer.

****

In August 2013, I provided legal commentary on the Sammy Yatim homicide on a Streetcar by Police Constable James Forcillio, on CP24, CTV, CBC Television, CBC Radio, Toronto Star, Global National:

CBC, The National" Police officer gets bail in Sammy Yatim shooting" August 21, 2013;

L'heure du monde - Relations difficiles entre les citoyens et la police de Toronto avec K. Djinko August 21, 2013;

Global National "Toronto streetcar shooting: police have a ‘defence that others don’t,’ says legal analyst" August 20, 2013;

Toronto Star "James Forcillo: An explanation of the bail process" August 20, 2013;

CBC "Why James Forcillo was charged with murder in Yatim shooting" August 20, 2013;

Toronto Star "Sammy Yatim: Family 'relieved' by SIU decision to charge officer with murder" August 19, 2013;

Toronto Star Toronto police review on mentally ill must yield results: Editorial August 14 2013

Related Research...

Andre Marin's Investigation

http://www.ombudsman.on.ca/home.aspx?lang=en-CA

MICHAEL ELIGON

Coroners Inquest

http://www.thestar.com/news/gta/2012/08/14/coroner_calls_single_inquest_into_3_police_shootings_of_mentally_ill_people.html

http://www.thestar.com/opinion/commentary/2013/08/04/make_public_oversight_of_police_training_a_priority.html

Public Statement from the Father of Michael Eligon Jr.

http://www.marketwire.com/press-release/public-statement-from-a-father-michael-eligon-jr-was-shot-killed-toronto-police-officer-1650732.htm

SIU REPORT

http://www.siu.on.ca/en/news_results.php

Video SHOOTING OF MICHAEL ELIGONhttp://www.thestar.com/news/crime/article/1140015--police-shooting-of-michael-eligon-a-timeline

Doug Pritchard Eye-witness Account Interview regarding the Police Killing Of Michael Eligon
(Very good verbal re-inactment)
http://vimeo.com/40549621

Media Report on SIU Director's decision regarding Eligon... Mentions TASERS...
http://www.zuza.com/news-story/75948-siu-clears-police-officer-in-shooting-of-michael-eligon/

Other MEDIA RESULTS of Eligon
TODAY'S GLOBE & MAIL:
http://www.theglobeandmail.com/news/national/toronto/ontario-to-review-how-police-respond-to-the-mentally-ill/article2420940/

Globe & Mail page A13

http://www.theglobeandmail.com/news/national/toronto/toronto-man-questions-shooting-of-son-by-police-officer-cleared-by-siu/article2418838/

Greiving Father hopes Truth will come out...

http://www.thestar.com/news/crime/article/1170211--grieving-father-hopes-truth-will-come-out-about-michael-eligon-s-death

SIU Rejects criticism in Michael Eligon Case
http://www.thestar.com/news/crime/article/1169701--siu-investigator-rejects-criticism-in-michael-eligon-case

Andre Marin Slams SIU

http://www.thestar.com/news/crime/article/1169048--ombudsman-andre-marin-slams-siu-over-pro-police-bias-in-michael-eligon-case

Rogers TV Coverage of Police Service Board meeting
http://www.rogerstv.com/page.aspx?lid=237&rid=16&gid=95147

Reuben Abib - BADC Deputation by Reuben Abib begins around the 1hr:33min mark...

SAMMY YATIM

SIU REPORT

http://www.siu.on.ca/en/news_results.php

Security camera footage of police shooting on TTC streetcar
http://www.youtube.com/watch?v=bPhBBr5LKHo

Enhanced Video of Shooting of Sammy Yatim by Toronto Police

http://www.youtube.com/watch?v=iy2zsuRyjaQ

Security camera footage of police shooting on TTC streetcar - Long Vs. 6:07min

http://www.youtube.com/watch?v=bPhBBr5LKHo