Officer given six years for streetcar shooting
All that can be said with any certainty about the case of Toronto police Const. James Forcillo is that he will spend at least one night in prison — oh, and that this, in the words of Winston Churchill, is just “the beginning of the end.”
The 33-year-old officer who shot and killed 18-yearold Sammy Yatim on a downtown streetcar was sentenced Thursday to six years in jail, one year more than the mandatory minimum for attempted murder.
Despite the best efforts of his lawyers to have Forcillo immediately released on bail pending an appeal of both his conviction and sentence, Ontario Court of Appeal Judge Eileen Gillese was unwilling to issue an instant decision after hearing two hours of argument.
Court will reconvene at 9 a.m. Friday to learn her decision, which meant Forcillo had to spend the night in custody.
Forcillo’s appeal lawyer, Michael Lacy, told Gillese that the way Crown attorneys Milan Rupic and Ian Bulmer prosecuted the case — by “bifurcating” or dividing the nine shots Forcillo fired that night into two distinct charges — they “created a logical absurdity and rendered the proceeding unfair.”
Forcillo was charged with second-degree murder in connection with the first volley of three shots he fired, one of which was lethal and caused Yatim’s death, and one count of attempted murder in connection with a second volley of six shots fired while Yatim lay on his back at the front of the streetcar.
That made him, Lacy said, very likely “the only person in the Commonwealth convicted of attempting to kill the same person he was lawfully acquitted of killing just seconds before.”
He is also believed to be only the second police officer in Canada to be jailed for a fatal shooting while in the line of duty.
The other was RCMP Const. Michael Ferguson, who was convicted of manslaughter in connection with the Oct. 3, 1999, shooting of Darren Varley.
That trial judge said the then-four-year minimum sentence constituted cruel and unusual punishment and gave Ferguson a conditional sentence of two years less a day.
That was later overturned by the Alberta Court of Appeal and upheld by the Supreme Court of Canada.
On the evening of July 27, 2013, Forcillo and his partner were the first to respond to a “hot shot” call for a male armed with a knife on the Dundas streetcar.
Just minutes before, unknown to the officers, Yatim had suddenly exposed himself and pulled a switchblade on a group of young women at the rear of the car, brandished the knife at them and sent frightened passengers racing off the vehicle.
Forcillo approached the streetcar with gun drawn and ordered Yatim, who was high on ecstasy and standing at the front of the car, to drop the knife.
Within about 50 seconds, after Yatim took a step and a half forward and refused to give up the switchblade, Forcillo fired the first volley of shots.
Less than six seconds later — 5.5 seconds — he fired the second volley, mistakenly believing, as he acknowledged in the witness stand, that Yatim was getting up.
TTC video showed Yatim did no such thing: unknown to Forcillo, one of the first shots had severed his spine and left him unable to move below the waist. He did rearm himself with the knife, which had fallen from his hand as he fell.
There was also citizen video of the shooting, which was quickly posted and went viral, and the case has attracted enormous attention.
That was evident even Thursday, with both courtrooms packed.
That led Lacy to recognize what he called “the elephant in the room,” the unusual crowd for such a “summary procedure … We are effectively in a fishbowl. You could say the community is watching” what the appeal court does.
But, he told Gillese, “Just as courts don’t pander to the uninformed, similarly, courts don’t pander to public opinion.”
“Public opinion is not public interest.”
Lacy argued that by “micro-compartmentalizing” the nine shots into two charges, it was the point at which “you divide an event, artificially, almost like a law school exercise, in ways that produce absurdity.”
Prosecutors laid the attempted murder charge only after Forcillo’s preliminary hearing on the murder charge was over, a move Lacy said was “aimed at trying to salvage a conviction.”
But appeal Crown Susan Reid, who supplied Gillese with the trial DVDs of the shooting and urged her to watch them, said video shows “that this may not have been a gratuitous killing” but that the jury’s verdict shows it found “excessive use of force with intent to kill” and that it was “a very serious breach of trust by a police officer.”
The cool arguments at the high court were in stark contrast to what transpired earlier in the day at the University Ave. courthouse, where anguished relatives of Yatim and Forcillo’s wife and friends sat but feet apart.
Afterward, outside the courthouse, Yatim’s mother, Sahar Bahadi, described the sentence as “justice for Sammy” and said she and her family would now try to “put the pieces of our lives back together.”
She was reading from a handwritten statement but at one point said, in a wrenching aside, “I want him back.”
Cruelly, Wednesday was the third anniversary of their Sammy’s death, and his father, Bill Yatim, whom the teen told a streetcar driver he wanted to call that night, was asked how he had marked the day.
“I sat down and stared at the wall, if you really want to know,” he said, and his cheeks were quivering with emotion. “What if this had happened? What if that had happened?”
He went out of his way to say he believed the majority of Toronto police are “superb,” as in fact did the trial judge, Ontario Superior Court Judge Ed Then.
Then said the sentence he gave Forcillo wasn’t meant to reflect on how the majority of officers do the job, but acknowledged his message was they should use their guns “only as a last resort.”