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Decision to reject officer’s appeal sends powerful message police ‘do not get a pass’

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It was an “unusual, if not unique” result. But the jury’s verdict convicting Toronto police officer James Forcillo of attempted murder in the shooting death of Sammy Yatim was reasonable, Ontario’s highest court ruled Monday.

In a highly anticipated decision — landing nearly five years since the con- troversial police shooting — the Ontario Court of Appeal unanimously upheld Forcillo’s 2016 conviction of attempted murder.

The panel of Chief Justice of Ontario George Strathy, Justice David Doherty and Justice Gary Trotter also dismissed Forcillo’s appeal of his six-year prison sentence handed down by trial judge Justice Edward Then.

The sentence, which is one year more than the mandatory minimum sentence for attempted murder with a firearm, “was fit,” the panel said in a 78-page decision, noting that Forcillo has never made an “expression of remorse.”

The decision brings significant relief to Yatim’s family, who say it validates their long-held view that Forcillo used excessive force. It also sends a powerful message to police.

“At its heart this is an important reminder by the province’s highest appeal court that the rules for police are no different than the rest of the popula- tion,” Julian Falconer, lawyer for Yatim’s mother, Sahar Bahadi, said in an interview. “Whether we are talking about mandatory minimums or instructions to the jury, police officers do not get a pass.”

But it may not be the end of the yearslong legal saga.

Forcillo’s lawyers now have the option to seek leave to appeal the decision to the Supreme Court of Canada, an uphill battle that would require them to show the issue is of national importance.

The suspended police officer’s lawyers will take the next few weeks to review the judgment and decide how to proceed.

Yatim, 18, died in a barrage of Forcillo’s bullets on July 27, 2013, moments after exposing himself and wielding a small knife on the busy Dundas West streetcar.

Within less than a minute of arriving on scene, Forcillo fired nine shots at Yatim in two distinct volleys separated by five and a half seconds. He first fired three bullets, including the fatal shot to Yatim’s heart, then fired six more as Yatim lay on the floor of the streetcar, paralyzed and dying.

The separation of the two vol- leys was vital to Forcillo’s conviction and formed the basis for his appeal. A jury found Forcillo not guilty of second-degree murder in connection to the first volley, but convicted him of attempted murder for the second. “In effect, (Forcillo) has been convicted of attempting to murder the very same person he was found to have justifiably shot just 5.5 seconds earlier,” the Court of Appeal panel wrote in its decision.

Forcillo’s lawyers argued the shooting should not have been divided into distinct charges, saying the shooting was one continuous event. But the panel judges — two of whom, Doherty and Trotter, are considered to be the top criminal law judges on the Court of Appeal — disagreed.

The jury’s verdict was reasonable, the panel ruled, finding there were “obvious differences” between the circumstances when Forcillo fired the first volley of shots and when he unleashed the second — including that Yatim was hit and laying on his back when Forcillo fired the second volley.

“Those differences could reasonably have led the jury to come to different conclusions as to what (Forcillo) perceived when he opened fire,” reads the decision. When Yatim lay on his back, Forcillo said “absolutely nothing” to him before the second volley, the panel said. “(Forcillo) knew from his training that Mr. Yatim did not pose an imminent threat to anyone merely by re-arming himself with a knife. He knew that he was not entitled to kill Mr. Yatim in these circumstances, yet he proceeded to fire six additional rounds fixed with that lethal intent,” the decision states.

Forcillo’s lawyers had also argued before the Court of Appeal that the six-year sentence handed down to the officer was unconstitutional.

They said the mandatory minimum sentence of five years for attempted murder with a firearm wasn’t intended to be applied to a police officer, who is armed by virtue of his employment. The Court of Appeal called that argument “faulty,” saying, in part, that a police officer’s obligation to carry firearms “does not preclude their criminal misuse in excessive force scenarios.”

Forcillo had been granted bail pending the appeal decision, but is behind bars after he was charged late last year with breaching his bail conditions. He has since been charged with perjury and attempting to obstruct justice, and is currently suspended without pay from the Toronto police.

The officer is still facing three counts of a professional misconduct in connection with the shooting.

A spokesperson said Toronto police will now proceed with the misconduct hearing, which could result in consequences including dismissal.