Forcillo lawyers call conviction ‘unreasonable’

Appeal hearing focuses on pause between rounds of gunfire during the Sammy Yatim shooting

The all-important five-and-a-half second gap between the first round of bullets fired at teen Sammy Yatim as he stood with a knife on a Toronto streetcar and the second volley, shot when the teen was on the ground, was under the microscope again Tuesday, as Const. James Forcillo’s appeal entered its second day.

The fate of the Toronto police officer lies, in part, in whether the Ontario Court of Appeal determines that the two rounds of shots were part of one ongoing shooting — or if it agrees that the volleys were rightly divided into two separate events, and two criminal charges.

That separation resulted in Forcillo’s 2016 conviction of attempted murder in the July 2013 shooting death of 18-yearold Yatim on a Dundas streetcar.

The jury acquitted Forcillo of seconddegree murder in connection to the first volley, during which the fatal shot was fired, but found him guilty of attempted murder for the second volley, unleashed as Yatim lay prone, paralyzed and dying.

Lawyers for Forcillo argued Monday that the separation of the shots into two events was artificial, and that the volleys are “inextricably intertwined,” making the jury’s conviction of Forcillo “unreasonable.”

“It’s my submission that the verdict for guilt of attempted murder is amply supported by the evidence.” SUSAN REID CROWN LAWYER

As a remedy, they are asking for the appeal court to quash the conviction and acquit Forcillo. But Crown lawyer Susan Reid countered the officer’s lawyers’ claims Tuesday, saying there is no ignoring the significant difference in circumstances between the first and second volleys.

Prior to the first, Yatim was standing, mobile and holding a knife. Before the second, he was “on the floor and in fact we know he is paralyzed from the waist down,” Reid said. But more importantly, Reid stressed to Chief Justice of Ontario George Strathy, Justice David Doherty and Justice Gary Trotter, Forcillo himself considered there to be two distinct circumstances between the first burst of gunfire and the second. The officer testified at his trial that he paused to assess the threat posed by Yatim and described the situation as having “changed.”

“It’s my submission that the verdict for guilt of attempted murder is amply supported by the evidence and it is not inconsistent with the acquittal (on second-degree murder),” Reid said.

Forcillo’s lawyers have also asked the Court of Appeal for a new trial based on the fact that his defence team was prevented from bringing key evidence before the jury.

That included a Google search in which Yatim asked “how to commit suicide without feeling any pain” as well as testimony from Rick Parent, a professor of criminology at Simon Fraser University. Parent was a defence witness who was called upon to provide expert evidence about the phenomenon of suicide-by-cop.

Lawyers for Forcillo argued Monday that the evidence was needed to “lend a different perspective” on Ya- tim’s state of mind, and counter the Crown’s frequent characterization of Yatim as a “person in crisis.”

But Crown counsel Howard Leibovich argued Tuesday that it was the right decision to exclude the evidence, calling it “irrelevant” to the issues the jury had to consider.

Forcillo has also asked the appeal court for a suspended sentence, barring an acquittal or the order of a new trial. The officer’s six-year sentence is one year longer than the mandatory minimum jail time for attempted murder with a firearm, something his lawyers say violates the charter.

Both sides completed their arguments Tuesday. A second phase of the appeal, dealing with the possible inclusion of fresh evidence in the trial, will be heard early in the new year.

Forcillo is out on bail pending the second phase of the appeal.