The attempted murder conviction of Const. James Forcillo was a “compromise verdict” that “does not accord with logic or common sense,” argue the officer’s lawyers in written submissions filed this week in the Ontario Court of Appeal.
“The appellant [Forcillo] appears to be the only one in the history of the commonwealth to be acquitted of having caused the death of someone but convicted of attempting to murder that same person during the course of the same transaction,” the officer’s lawyers state. The Court of Appeal must consider whether the outcome was “logically perverse and legally impermissible,” suggest Michael Lacy, Joseph Wilkinson and Bryan Badali, lawyers at Brauti Thorning Zibarras LLP in Toronto.
A number of other grounds of appeal are advanced in the written submissions, including what the officer’s lawyers say was a legal error by Superior Court Justice Edward Then, when he refused to permit a “suicide by cop” expert testify at trial for the defence. The verdict was “tainted by legal errors and/or non-direction by the trial judge,” they write.
The officer was originally charged only with second-degree murder in the death of Yatim, who was brandishing a pocket knife and standing near the top step of a streetcar when Forcillo opened fire, less than a minute after arriving on the scene. All of the passengers had fled the vehicle.
The constable fired an initial volley of three shots. Nearly six seconds later, he fired six more shots as Yatim was writhing on the floor of the streetcar. The medical evidence was that one of the shots from the first volley caused the death of Yatim. The Crown added a charge of attempted murder in respect to the second volley, after the preliminary inquiry.
The entire incident was captured on security video from inside the streetcar and also smart phone video taken by onlookers. After deliberating for six days in January 2016, the jury acquitted Forcillo of second degree murder in but found him guilty of attempted murder.
Then imposed a sentence of six years in prison, slightly longer than the five-year mandatory minimum for a conviction for attempted murder with a firearm. “There was no evidentiary basis for Officer Forcillo to consider Mr. Yatim an imminent threat nor any justification for Officer Forcillo to fire any of the rounds of the second volley in mistaken self-defence,” wrote Then in his sentencing ruling last July.
The officer is also asking the Court of Appeal that if it does not see fit to enter an acquittal, to order a new trial. Or, if the conviction is upheld, to find that the mandatory minimum sentence violates the Charter and impose a suspended sentence.
In the written arguments filed on appeal, the lawyers for Forcillo state that the trial judge incorrectly accepted the Crown position that the second volley of shots was a separate event. “As a matter of common sense, the suggestion that an accused can be legally justified in killing someone, but criminally liable for attempting to kill that same person within the span of less than 10 seconds, is unfathomable,” they write. By leaving the attempted murder count with the jury, it invited a “compromise or perverse verdict,” they state.
During the trial the defence sought to admit the expert testimony of Richard Parent, a former police officer and now a criminology professor at Simon Fraser University, on the topic of suicide by cop. Parent testified in a voir dire that he believes about 35 per cent of police shootings are precipitated by the victim. As well, someone in an agitated state such as Yatim, could be “technically dead” yet still be trying to carry out their goal, Parent told the court.
Then ruled that Parent could not testify in front of the jury because what was at issue was whether the officer used reasonable force, not the state of mind of Yatim. On appeal, Forcillo is arguing that the judge applied an “inappropriately stringent threshold” for admissibility. Suicide by cop is a social science “with a well-established academic literature dating back decades,” his lawyers write.
The trial judge dismissed an application after the conviction, seeking to strike down the five-year minimum for attempted murder with a weapon. On appeal, the officer’s lawyers are again arguing that the provision violates the Charter and is grossly disproportionate for someone who made an “error in judgment in the heat of the moment.”
The Crown is expected to file its written arguments in the coming weeks, in advance of the appeal which is scheduled to be heard in October.
Forcillo remains free on bail and is suspended without pay from the Toronto police. In the past 40 years in Canada, three officers have been convicted of manslaughter after a fatal confrontation with a civilian. No officer has been convicted of murder.