Showing posts with label Mark Saunders. Show all posts
Showing posts with label Mark Saunders. Show all posts

Sunday, April 08, 2018

Doug Ford will provide enhanced funding for TAVIS

Ontario Progressive Conservative Leader Doug Ford's speech on policing: if he becomes Premier of Ontario in June 2018 he will pump more money into The Toronto Anti-Violence Intervention Strategy (TAVIS). Tavis was a unit that collected personal information on mostly Black and Brown males. It was feared and hated for criminalizing a community based on racial stereotypes.








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Tuesday, January 26, 2016

R v. Constable James Forcillo - Is the judgement a licence to kill?


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; 


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





Related Research...
Andre Marin's Investigation
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
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



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

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


TORONTO STAR

NATIONAL POST

GLOBE & MAIL

ALJAZERRA 


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Tuesday, June 09, 2015

John Tory, Toronto Police Services Board, Elimination of Carding and Racial Profiling - A Critical Viewpoint on the Issue


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)
Created June 9, 2015

“Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.”  R. v. Parks, (1993) 15 OR (3d) 324; 24 CR (4th) 81; 84 CCC (3d) 353; [1993] OJ No 2157 (QL); 21 WCB (2d) 121; 65 OAC 122  (Ont. C.A.), p. 369.

I am one of the leading lawyers in Ontario on the carding and racial profiling file. I therefore take this opportunity to chart my own journey in the quest for a juster justice system and the elimination of lawless law enforcement. Twenty three years after Carlton Parks decision very little has changed in respect to the lot of Black males in Toronto and Ontario in respect to our interactions with law enforcement, Courts and Tribunals. I recently litigated a carding incident of lawyering whilst Black arising out of a carding incident in a lawyers' lounge up to the Court of Appeal: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.) and most recently R. v. Steele (2015) ONCA 169 (Ont. C.A.). As well, other lawyers have also felt the brunt of racial profiling in the Black/brown skin that we are in Shallow v. Toronto (Police Services Board), 2008-00492-I, a case that was before the Human Rights Tribunal of Ontario, where a Black Crown Attorney complained about being belittled and falsely arrested because of his race: "The unspoken message to me was: lawyer, Crown, or whatever, you're still just a black guy so know your place, boy"; Bogle v. Toronto Police Services Board: On December 27, 2005, his birthdate, Jason Bogle, a 26 year old Black Lawyer, and his girlfriend, were surrounded in his Lexus vehicle shortly after he left a celebration of his birthday to take his girlfriend home. The excuse that the officers provided was that he fit the description of a suspect and that in the wake of the Boxing Day Jane Creba shooting they cannot be too careful. See also, Pieters v. Toronto Police Services Board, 2014 HRTO 1729 (CanLII). In this case, I witnessed racialized violence against two Black males and intervened. I took this case to the HRTO with no regrets.

On Sunday June 07, 2015, John Tory, Mayor of Toronto, announced that he has had a change of heart in respect to the carding of citizens by Toronto Police Service. This announcement on a Sunday evening was met with jubilation.

Obviously, the "all hand on deck" approach to this issue brought John Tory to a come to Jesus moment. However, on the ground for numerous years dealing with this issue were Jim Rankin, a reporter with the Toronto Star; Selwyn Pieters, the author, here who has litigated these case at every level of Courts in Ontario; David Tanovich who have written, taught and spoke out on this issue; the African Canadian Legal Clinic, whose advocacy and public relations on this file was sustained.

While Mayor John Tory pledge to eliminate carding, some system of accountability is required for police interactions with citizens. The provision of reasons for the stop, the issuing of receipts for police interactions and advising citizens that they are free to leave, would be a step forward.

Least we forget, the struggle to end carding involved numerous persons who paid a high price including me. Carding by Toronto Police killed my former client Dwayne Manning. I filed a Human Rights Application bases on the numerous instances Mr. Manning was carded. He continued to be harassed in Downtown Toronto by police officers. As Dwayne Manning continued to be carded and harassed his confidence was shaken and his mental health declined. Dwayne took his own life. See, Manning v. Toronto Police Services Board, 2014 HRTO 1409 (CanLII) where his case was deemed abandoned because of his death.

I am currently counsel for two men Rohan Roberts and Michael Duru in the Jane and Finch area who were racially profiled, carded, arrested and charged by Officers Ryan D'Sena and Andrew Keown. Rohan Roberts criminal charges were withdrawn on April 28, 2015 on the basis that there is no reasonable prospect for conviction. For coverage of Roberts case , See, Jeff Gray Toronto police face human-rights complaint over alleged beating Globe and Mail, June 05, 2015; Mark Carcasole, Reporter, Global News, Toronto man launches human rights complaint against police, Global TV, June 05, 2015; Greg Ross, Toronto man files human rights complaint after alleged police beating CBC TV, June 04, 2015; Tammie Sutherland, EXCLUSIVE: Charges dropped against man who alleged Toronto police brutality CityNews, April 28, 2015.

In a recent letter to Mark Saunders, Chief of Police, I wrote:
It is not a crime for a Black man in Jane and Finch to be in and around his neighbourhood. I live in Regent Park and I walk in my neighbourhood any hour of the day and night as that is my prerogative. I trust that you will, in your new role, reinforce to your officers that citizens have rights under  The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the "Charter"); Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”); Police Services Act, R.S.O. 1990, c. P.15 as amended. This is not North Korea.
Michael Duru's charges are set for a five day trial commencing in March 2016.

Michael Duru made a blurry video of the January 2015 interaction that went viral: http://news.nationalpost.com/2015/01/28/video-of-alleged-violent-takedown-by-officer-being-investigated-by-toronto-police/



Michael Duru video



This is my recollection of being locked out of police headquarters on November 14, 2012, when members of the African Canadian Community attended to make deputations and observe the Board's meeting on carding/racial profiling:
As a litigator who is involved in issues of racial profiling in criminal matters, civil matters and human rights applications, naturally I have an interest in the Toronto Police Service and how its policies in this area that touches on the fundamental rights of citizens in this City are shaped.

I attended the Toronto Police Services Board meeting on November 14, 2012, to be met by a wall of police officers who denied total access to persons interested in attending that meeting, most of whom were Black people. The claim the the meeting room was full was proven to be false by Televisions reports that showed empty seats. As well, it is the normal practice to stream the meeting into an overflow room.

The Chair of the Police Services Board Alok Mukerjee and the Chief of Police William Blair are responsible for this disrespectful treatment.

Lets see who were outside: John Sewell, a former mayor could not get in. African Canadian Legal Clinic Lawyer Roger Love could not get.

I could not get into police headquarters to attend this public meeting. Here I am being blocked along with Tidy Francis and Steven Mayers.


Three Black Deputants could not get in. To add injury to insult one was stopped, carded and denied access. The female Sargeant even recorded his personal information on her cellular telephone - a total violation of what a public meeting is supposedly about open access and possibly a violation of the man's privacy.


In fact even the media was prevented from entering the meeting, it took a lot of time and effort for the Canadian Broadcasting Corporation to gain entry to that public meeting. The Toronto Star also reported on the lock out of citizens who were there to make deputations.
In terms of this file, I have litigated carding and racial profiling before Courts and Tribunals on behalf of myself and numerous other people whose rights in my view were violated.

Pieters v. Department of National Revenue, 2001 CanLII 38322 (CHRT), was one of the first cases to reach a Human Rights Tribunal where the allegations of racial profiling was central to the issue. That case was settled: Pieters v. Dept of National Revenue - Minutes of Settlement T650/3801, January 30, 2002. Amongst the terms of the settlement were:
3. The Respondent agrees to provide a letter of apology to the Complainant from the Commissioner of the CCRA with respect to the comment made to the Complainant by an employee of the Respondent on May 24, 1999.
4. The Respondent undertakes that the criteria applied by Customs officers at ports of entry shall not include criteria that discriminate unlawfully on the basis of race, colour, national or ethnic origin or gender, or other prohibited grounds.
5. The Respondent, in consultation with the Canadian Human Rights Commission (CHRC) and the ACLC, will request proposals and retain an external contractor to design and implement a pilot project intended to develop statistics on referrals to secondary examination, based on race, colour, national and ethnic origin and gender of referrals in the context of all passengers passing through ports of entry.   The time frame and location(s) of the pilot project will be determined by the Respondent in consultation with the external contractor, the CHRC and the ACLC.  The project will also analyze, on the basis of race, colour, national or ethnic origin and gender, the impact of the criteria applied by Customs officers at ports of entry and make appropriate recommendations.  The result of the pilot project will be provided to the CHRC and the ACLC, and the Respondent will consult with the CHRC and the ACLC respecting the implementation of its recommendations.
6. The pilot project will consider the collection on a permanent basis of the data described in Article 5.  The Respondent will consult with the CHRC on the general purposes of any measures that may be recommended from the pilot project prior to any decision on the further collection of such data.  If these data are collected on a permanent basis, CCRA shall collect and analyze such data annually and prepare a report to the Minister of National Revenue and to the CHRC, which shall be made part of the public record.
7. On or before March 1, 2002, the Respondent shall retain an anti-racism expert, external to CCRA, to provide anti-racism and cultural diversity training to all Customs officers.  Each new officer shall receive this anti-racism training within 180 days of hire, and all student officers shall receive anti-racism training as part of their orientation.  Refresher anti-racism training will be provided to all customs officers on a regular basis.
8. The Respondent undertakes to ensure that CCRA policy directs Customs officers to advise each person directed to secondary inspection of the reason for conducting such inspection.
9. The Commissioner of CCRA, or the Assistant Commissioner, will meet with the ACLC on an annual basis to hear the perceptions and impacts of CCRA Customs practices on racialized groups.  The ACLC will bring representatives of appropriate community groups to these meetings.
Selwyn argued numerous case of racial profiling in Criminal Courts including: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)
R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.).

At the Human Rights Tribunal of Ontario, I have litigated several significant cases, some of which I won, some of which I lost and some of which I settled through mediation.

Racial profiling and carding of Black, Brown and Aboriginal peoples in Canada makes society poor. It fosters distrust where mutual respect should exist. This observation was previous made by me on social media and attracted the following comment from Toronto criminal defence lawyer Jeffry House"
I loved yesterday's press conference in which many elite Canadians demanded an end to carding. But it raised a question in my mind: how come the head of the Human Rights Commission (for ten years) and the Chief Justice of Ontario (for 16 years) never managed to use their power to stop it? Instead, they wait till they are without official power, and resort to exhortations to others?
Copyright © 2015 Selwyn Pieters. All rights reserved. Please use citation if using or relying on my analysis.
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