Rosie DiManno
Had there been no YouTube video, would there have been charges?
They won’t take “guilty” for a verdict.
But a city is expected to quiescently accept “not guilty” as a twothirds outcome. Because we are a civilized society. We are also a society, across Ontario, which has never convicted a cop of murder in the line of duty.
Public outrage over the police shooting of Sammy Yatim must have spent itself in the days and weeks after the fatal July 2013 confrontation between the knife-brandishing teenager and Const. James Forcillo — viewed thousands of times on footage captured by citizen cellphone video.
Had there been no video — from bystanders, from cameras inside the streetcar from which panicked passengers had fled — would there ever have been charges of seconddegree murder and attempted murder laid against the constable? Defence lawyer Peter Brauti, in a wideranging refutation barely couched in alleged respect for the jury’s six-day deliberation, alit on that “social media” evidence as a scourge, a complicating factor, which induced him to seek a change of venue away from Toronto and judge-alone trial from the Ministry of the AttorneyGeneral. Both entreaties were rejected.
“What I think is it started off with a trial-by-YouTube because what we know is, within seven minutes of the incident taking place it was posted all over YouTube,” Brauti told reporters during a scrum outside court Tuesday after Forcillo was found guilty of attempted murder — but not the more serious charge of second-degree murder or manslaughter.
“We started behind the 8-ball on this one.”
He added: “We needed to go judgealone because public opinion was so tainted that we don’t think that jurors are necessarily going to be able to overcome the public pressure here, what might be ingrained in their minds from all the YouTube and social media out there.”
Further, on the sideways accusation of a “compromise verdict,” the implied suggestion of deadlock in the jury room resulting in a middlecourse agreement on the attempted murder charge: “It’s a question that’s left in my mind.”
Clearly, Brauti was still fuming over the trial judge’s exclusion — determined after a voir-dire — of the defence’s suicide-by-cop theory; that Yatim had orchestrated the lethal showdown with a cop. “We were shocked and disappointed we weren’t allowed to put that to the jury. And I believe it would have had an effect with the jury. How much of an effect? I don’t know. But I believe it could have changed the outcome on the attempted murder charge.”
So, shame on us for trusting our own eyes, our own moral standards, before hearing Forcillo’s immensely self-serving testimony from the witness stand. We ought not, apparently, give credence to anything other than an officer’s word and the justification that arises from an officer’s perspective. Double shame on Justice Edward Then, for ruling that Yatim’s state-of-mind was irrelevant to what unfolded; only Forcillo’s actions were of significance, primarily because the officer knew nothing about what had transpired before he arrived on the scene, repeatedly ordered Yatim to drop the knife, and then fired his Glock nine times in two separate volleys.
The first volley killed the teen; the second volley constituted the charge and conviction on attempted murder. Yatim was already dying — which Forcillo might not have realized — but there was no rationale, the jury concluded, for six more shots. That was the attempt to murder, as illogical as the distinction may be to comprehend.
Methodical, meticulous parsing of evidence — to the point that the crux of the thing is often buried in minutiae and deflection — is a common feature of trials where a police officer is the defendant. That, and the Criminal Code component, which allows cops vast discretion in using lethal force when assessing a risk to the officer and/or the public — as much force as necessary if they act on reasonable grounds.
You can be damn sure it would have been second-degree murder or manslaughter for you or for me.
Some will see the single conviction — Brauti objects to that word, because he will seek a stay of procedures that “disentitles the state to a conviction because of an abuse of power” — as a rare victory, unprecedented, in a trial with a cop in the dock. Any sense of assuagement over the verdict — and a minimum four- to five-year prison term — speaks to the long-festering resentment against a two-track justice system: One for law enforcement, one for everybody else. There is. Indisputably there is. Those unsatisfied with a glass half-full, one-third full, will not be so easily placated, even if this jury did venture where few have ever gone before. They will see it as yet another cop getting away with murder. “I would dispute that a lot of the public’s perception is that an officer just got away with murder,” said Mike McCormack, president of the Toronto Police Association. “It’s a very complex case and an emotional case and anybody who followed it would have a better understanding.”
This is my understanding from covering the case: It all turned on a flick of the knife.
An alleged flick of the knife, in Yatim’s hand, as he stood inside the stairwell of that streetcar.
The flick which, as Forcillo steadfastly maintained in the witness stand, had convinced him that Yatim, armed, was hell-bent on stepping down, stepping out, potentially to lunge at the officer with his switchblade.
Look at the video. Decide for yourself, though it’s now a moot point. The knife went up a smidge, went down a smidge as Yatim stepped back a pace and then back forward a pace. He had not verbally threatened Forcillo; merely mocked him with obscene language. It could have been no more than a muscle tic, that flick. To Forcillo, it dripped with menacing intent.
The Crown presumably failed in convincing the jurors otherwise, failed in persuading them that Forcillo was a hothead incensed by Yatim’s disobedience and jeering. That he reached too rashly for the shooting option when he could have, might have, de-escalated the crisis by other means. A “joke,” Forcillo had described pepper-spray.
In this crucial matter, the jury sided with a defendant who admitted on the stand that he’d been wrong in his belief that Yatim, felled in the first volley, was attempting to get up again — spine shattered, the fatal bullet having struck his heart — which caused him to fire again. And again. And again. And again. And again. And again.
Then the perishing Yatim was Tasered by a sergeant.
Forcillo told court nobody was more surprised than him on viewing that video that showed Yatim had not lifted his torso at a 45-degree angle. The officer acknowledged he was mistaken and, had he the opportunity to do it again, he would not have fired the second volley.
He was mistaken. He was wrong. His perception was disproven. Hence guilty of attempted murder.
Yet, despite that critical admission, Forcillo’s perception of Yatim as an immediate threat, a looming risk, was swallowed hook, line and sinker.
Forcillo testified he’d drawn his gun “about a dozen times” in threeand-a-half years on the police force, a ratio that far surpasses the average in drawn-weapon statistics among his fellow officers.
That raises the question: How far wrong does a Toronto cop have to be before a jury will convict him of murder?