Earlier this year, the Ontario Court of Appeal dismissed the appeal of former Toronto Police Service officer James Forcillo over his conviction of attempted murder and the resulting sentence of six years. It was a unanimous judgment by Chief Justice George Strathy, Justice David Doherty and Justice Gary Trotter. In my opinion, it was a brilliant, well-reasoned decision.
In its decision, the court confirmed that, in some circumstances, minimum sentences are warranted and it raised the bar for the introduction of fresh evidence on appeal. Their decision, in my humble view, sent a message to Ontario trial and appellant lawyers that they will not be swayed by public opinion and are not afraid to call out weak arguments.
In January 2016, Forcillo was acquitted of murder for the shooting of Sammy Yatim, but he was found guilty of attempted murder. The conviction was based on facts presented at trial.
On July 23, 2013, Forcillo was first on scene to a streetcar stopped on Dundas Street West, responding to a call about a man with a knife. When he arrived, 18-year-old Yatim was standing at the door of an empty streetcar, holding a knife. The patrons and driver of the streetcar had been able to escape without resistance from Yatim, although, in fairness, many of them were threatened by Yatim prior to exiting safely. Forcillo was standing some distance from Yatim, with his gun drawn, ordering Yatim: “Drop the knife, drop the fucking knife.” Yatim responded with insults, stating: “You’re a pussy, you’re a fucking pussy.” When another officer arrived on scene, Yatim stepped back into the streetcar. Forcillo warned Yatim, and said, “If you take one step closer, I will shoot you, I’m telling you right now.” When Yatim said no, Forcillo responded by firing three shots. Yatim fell onto his back and, within six seconds, Forcillo fired six more shots at Yatim, who was lying on the ground.
The defence argued at trial that the two rounds of fire were one distinct incident. The Crown, by adding a charge of attempted murder to the indictment, was able to put before the jury its theory that Forcillo’s two rounds of firing constituted two distinct acts or actus reus. The Crown, I opine, was cognizant of the fact that since Forcillo was a police officer, a jury might not be inclined to find him guilty of murder. However, I believe the jury reasoned that, as a “compromise verdict,” it could, conceivably, find that Forcillo’s actions in shooting Yatim six times while he lay on the ground was not justified.
In my opinion, Forcillo was, in essence, between a rock and a hard place. He had the support of the Toronto Police Service, so he wasn’t about to throw the TPS under the bus and argue that his training was inadequate to deal with such a situation and/or that his own proclivity toward aggression affected his own perception of danger.
Had he testified as such, the jury might have been sympathetic to Forcillo and acquitted him of all counts. However, had he done so, I believe it would have been very difficult for Forcillo to retain his position as a police officer.
After the conviction of Forcillo in 2016 — and knowing that attempted murder with a firearm carried a minimum term of imprisonment for five years — the defence then challenged the constitutionality of the minimum-sentence provisions to no avail. Justice Edward Then sentenced Forcillo to six years in jail. Forcillo appealed and received bail pending appeal.
However, after this, Forcillo was arrested for breaching his bail by not residing at his residence. And then Forcillo was arrested for perjury and obstruction of justice. Forcillo, through his appeal lawyers, attempted to argue at the Court of Appeal that Yatim’s state of mind was relevant and the trial judge erred by excluding such evidence.
The Court of Appeal rejected such an argument, since Yatim was a stranger to Forcillo and Yatim’s state of mind was a red herring.
Forcillo then argued that the trial judge erred by instructing the jury to consider the shooting as two discrete events and their task was to determine his culpability separately for each. Again, the Court of Appeal rejected that argument. The elephant in the room was the fact that Yatim, now paralyzed while he lay on the ground, was no longer an imminent threat to Forcillo and yet Forcillo chose to shoot six more bullets into him, because he “perceived” that Yatim was getting up from the ground.
It used to be said that a picture paints a thousand words. With the advent of technology, video evidence now replaces the still shot. Without the video footage, Forcillo might have been able to convince a jury that his perception was accurate.
To the chagrin of Forcillo, the video surveillance clearly showed that Yatim did not attempt to get up. The video surveillance also captured the distance between Yatim and Forcillo — far enough away to not justify even one shot.
Forcillo proffered fresh evidence before the Court of Appeal, namely, two reports from psychologists providing opinion evidence concerning the “impact of high-stress, life-threatening situations on perception and cognition.” The court heard but rejected the evidence as not being capable of affecting the result at trial.
Forcillo then argued that Then was wrong to uphold the constitutionality of the minimum sentencing provisions. Again, his argument was rejected.
After the decision was published, TPS representative Mike McCormack told a media outlet that Forcillo was “hit hard” by the judgment. However, in my opinion, it is Yatim and his family who have been hit the hardest by what transpired.
Forcillo was fortunate to receive a six-year sentence versus a life sentence. Having reviewed a fair number of sentencing cases for attempted murder as part of my research for this article, I can assure readers that the usual starting point is eight years. Forcillo is young and will be eligible for day parole after one year. The Yatim family, however, is serving a life sentence.
Marcy Segal is a criminal lawyer turned advocate and consultant. Called to the bar in 1990, she began her career in criminal law and has transitioned to litigation and consulting with companies to reduce sexual harassment and harassment in the workplace.