Forcillo’s lawyers call Yatim shooting a ‘single transaction’
Attorneys argue shots shouldn’t have been divided into two volleys, as was done at officer’s murder trial
The nine bullets Toronto police officer James Forcillo fired at Sammy Yatim were part of the same ongoing shooting and should not have been separated into two distinct occurrences at the officer’s criminal trial, lawyers for the convicted cop argued at the Ontario Court of Appeal on Monday.
More than four years after Forcillo fatally shot Yatim, 18, on a Toronto streetcar, Ontario’s highest court heard the suspended officer’s appeal of his conviction and his six-year jail sentence.
Central to the appeal is the fact that Forcillo, who was not in court Monday, fired his police-issued Glock at Yatim in two discreet volleys, separated by about five and a half seconds.
Last year, the jury at his trial found the officer not guilty of second-degree murder in connection to the first volley of three shots, during which the fatal shot was fired.
But Forcillo was convicted of attempted murder for the second round of six bullets, fired as Yatim was on the floor of the streetcar, paralyzed and dying.
Before a panel of Chief Justice of Ontario George Strathy, Justice David Doherty and Justice Gary Trotter, Forcillo’s lawyers stressed the uniqueness of the case and what they have called the “illogical” finding that he was convicted of attempting to kill someone who he lawfully killed just seconds before.
“This scenario, I think is fair to say, has never arisen before,” said Michael Lacy, one of Forcillo’s lawyers.
“It’s (Forcillo’s) submission that what came to be known as the two volleys of shots were so inextricably intertwined that they formed part of a single continuous transaction,” Lacy said.
The officer, who is suspended without pay from the Toronto police force, is seeking an acquittal or a new trial.
His lawyers have also argued the sentence handed down by trial judge Justice Edward Then was severe and that if the conviction is upheld, Forcillo should serve a suspended sentence.
Forcillo’s six-year sentence is one year longer than the mandatory minimum of five years jail time for attempted murder with a firearm, something the officer’s lawyers say violates the Charter. The mandatory minimum sentence for attempted murder with a firearm was never meant to deal with a case like Forcillo’s, but rather to crack down on mounting gun violence by the “criminal element,” his lawyers said.
“The clear purpose of that legislation was to target people who make decisions to pick up firearms,” Lacy said, whereas Forcillo was “armed as a result of his employment.”
Forcillo’s lawyers also detailed what they said were the detrimental ef- fects of being prevented from providing the jury with evidence that would have raised the question of whether Yatim was committing suicide-by-cop.
That evidence included text messages, expert testimony and a Google search Yatim made that provided insight into Yatim’s state of mind, lawyer Joseph Wilkinson said.
In that Google search, Yatim had asked “how to commit suicide without feeling any pain,” and Wilkinson said the officer’s defence lawyers should have been able to present the jury with evidence about the suicide-by-cop phenomenon to “lend a different perspective.”
Wilkinson argued that this perspective was important to counterbalance what he said was the Crown’s frequent characterization of Yatim as a “person in crisis.”
Late Monday, Crown lawyer Susan Reid began her arguments in response to the appeal, stressing that the acquittal on second-degree murder but the conviction on attempted murder are not inconsistent.
“The defences are different and the circumstances were different,” she said. Sahar Bahadi, Sammy Yatim’s mother, attended the appeal Monday, saying before it began that she believes Forcillo’s conviction will be upheld.
“I still believe in God. I still believe in justice. I think that (his conviction will be upheld) and he will go to jail,” she told the Star in an interview last week.
The appeal will continue on Tuesday.