Toronto police officer James Forcillo is likely facing a lengthy penitentiary sentence, despite being acquitted of second-degree murder in the July 2013 shooting death of Sammy Yatim, say legal experts.
The jury found the officer not guilty of the murder charge that stemmed from the first three shots he fired, which proved to be fatal.
However, a jury convicted Forcillo of attempted murder for a second round of six shots, five of which hit Yatim as he was wounded and lying on the floor of a Toronto streetcar.
The jury verdict is believed to be the first time ever that an officer in Ontario has been convicted in the death of a civilian in the line of duty.
“This sentencing is unprecedented and there is an interesting tension of issues that arise,” says Heather Pringle, a defence lawyer at Pringle & Bottomley in Toronto.
“The state of mind that Forcillo had, that the judge must now sentence him on, was an intention to commit the most serious offence in the Criminal Code.”
The Criminal Code imposes a mandatory minimum sentence of four years for anyone found guilty of attempted murder with the use of a firearm, or five years if it is a restricted firearm.
The precedents for this offence though suggest that a much longer sentence is the norm, often in excess of 10 years.
A pathologist determined that one of the first three shots fired by Forcillo caused the death of Yatim.
The second volley of shots did not cause his death, which resulted in the Crown adding the count of attempted murder after the preliminary hearing.
Two motions will be heard in May in front of Superior Court Justice Edward Then before the officer, who remains free on bail, is sentenced. Defence lawyer Peter Brauti is bringing a Charter challenge to the mandatory minimum punishment. As well, he wants the guilty verdict stayed as an abuse of process based on an argument the officer should not have been prosecuted for following his training.
It is “akin to officially induced error,” said Brauti in court.
However, a motion to stay the verdict because the officer was following his training is unlikely to succeed, says Daniel Rechtshaffen, a Toronto defence lawyer.
Forcillo’s actions are still required to be reasonable, which the jury found that it was not, when he fired the second volley while Yatim was wounded and dying.
“You can’t say that is part of the training,” Rechtshaffen says.
The Supreme Court of Canada has previously upheld a four-year minimum sentence for manslaughter with a weapon in a case where the accused was an RCMP officer.
Given that ruling and the traditional range for attempted murder sentences, the Charter challenge is a “red herring,” suggests Rechtshaffen.
The jury’s verdict on the second-degree murder charge makes it difficult for the death of Yatim to be an aggravating factor, says Michael Dineen, a partner at Dawe & Dineen in Toronto, who specializes in criminal appeals. “That would come close to punishing him for that which he was acquitted,” Dineen says.
At the same time, both Pringle and Dineen point out that the officer was in a position of public trust, which is an aggravating factor. At his trial, Forcillo testified that he had drawn his gun about a dozen times, in the 3½ years he was a police officer, but had never previously fired it on duty.
Crown attorneys Milan Rupic and Ian Bulmer declined to comment after the verdict.
The prosecutors were singled out for praise though by Sahar Bahadi, the mother of Sammy Yatim.
“They were very strong and showed so much class during the trial,” she stated.
It is not known what sentence the Crown will ultimately seek, but it is expected to be significantly more than the mandatory minimum. What remains to be seen is how Justice Then will apply the murder acquittal to the sentence he imposes on the officer.
For the past 25 years, the comments of the late Chief Justice Antonio Lamer in the Supreme Court’s decision in R v. Logan have frequently been cited by trial judges in attempted murder cases.
“The stigma associated with a conviction for attempted murder is the same as it is for murder,” Lamer wrote. “The attempted murderer is no less a killer than a murderer: he may be lucky — the ambulance arrived early, or some other fortuitous circumstance — but he still has the same killer instinct.”
The Ontario Court of Appeal in a 2008 ruling in R v. Tan looked at a number of other cases and concluded that nine years was “at the lower end of the range” for attempted murder.
Two years later, in R v. Smith, the appellate court upheld a 10-year sentence for a first offender.
Forcillo remains free on bail and suspended with pay.