Court denies ex-cop’s appeal
Decision upholds conviction of Forcillo for 2013 shooting death of Sammy Yatim
What began with eight police bullets striking a young man on a hot July night in Toronto has ended, more than five years later, with a former police officer behind bars, a rare and unusual convic- tion upheld.
The Supreme Court of Canada announced Thursday it would not hear the case of former police officer James Forcillo, who was convicted of attempted murder in the fatal shooting of Sammy Yatim on a streetcar in 2013.
The application asking Canada’s highest court to hear his appeal had been Forcillo’s last hope to overturn his conviction and six-year jail sentence, after both were unanimously upheld by Ontario’s Court of Appeal earlier this year.
The decision marks the conclusion of a legal saga that prompted public outrage, spawned a review of Toronto police use of force and saw the unprecedented attempted murder conviction, by a jury, of a Canadian police officer in a death oc- curring while the officer was on duty.
“It’s done,” Yatim’s mother, Sahar Bahadi, said when reached by phone Thursday moments after the decision was released. Bahadi said it was a decision she expected, but was nonetheless relieved to hear. “Still, nothing will compensate me. I lost my son, and nothing will bring him back to me.”
“We hope that with this decision,
Mr. Forcillo finally accepts his conviction and sentence, and responsibility for his actions,” said Sammy’s father, Bill Yatim, in a statement.
The Supreme Court of Canada accepts just a fraction of the cases applicants submit to be heard at the highest level — only about 11 per cent are successful in this — and the court does not provide reasons why it rejects cases.
“At most, what one can take away from a dismissed application is the court saying there isn’t a significant legal issue of national importance for Canada’s highest court … to decide right now,” said Eugene Meehan, lawyer at Supreme Advocacy in Ottawa who specializes in Supreme Court matters.
Michael Lacy, one of Forcillo’s lawyers, tweeted Thursday that he respected the decision, saying Forcillo “will now continue to serve out his sentence.”
The former cop — he resigned effective Sept. 4, Toronto police confirmed — will be eligible for day parole in July, and for full parole as of January 2020, according to a spokesperson for the Correctional Service of Canada.
Forcillo has been behind bars since November 2017, after he was arrested for violating bail conditions. He later pleaded guilty to perjury for lying in a court affidavit he’d filed to change his address and was sentenced to an additional six months.
The finality of Forcillo’s conviction in a shooting that occurred while he was on duty will have a long-standing impact, particularly to public’s perception of justice, said Kate Puddister, assistant professor of political science at the University of Guelph, who focuses on police accountability.
“Public confidence in the police and in the administration of justice can become incredibly strained when the police use lethal force, and this case demonstrates that, when that force is not justified, there are real and significant consequences,” she said.
“It is impossible to overstate the significance of a conviction of a police officer in respect of a shooting death of an emotionally disturbed person,” said Julian Falconer, lawyer for Bahadi, who has represented families of people killed by police.
“The system acquits these officers as a matter of course.”
Falconer said the signal the courts have given is important, because it recognizes “how difficult a deliberation this was for the jury and they respected the process and the unusual verdict.”
Yatim’s shooting death on July 27, 2013, sparked outrage within hours. Video shot by a bystander captured Forcillo shooting Yatim in two separate volleys: first, as he stood on the steps of an empty Dundas streetcar, then nearly six seconds later. He resumed firing as Yatim lay on the ground, paralyzed and dying.
Minutes before the shooting, Yatim had exposed himself and wielded a small knife, sending passengers and the streetcar driver fleeing. The police were summoned.
The death of Yatim sent hundreds of demonstrators into Toronto’s streets within 48 hours, and led to Forcillo being charged with second-degree murder by the Special Investigations Unit, Ontario’s police watchdog.
A year later, Forcillo was charged again, this time with what many considered to a confounding count: attempted murder.
Crown prosecutors argued at trial the charge applied only to the second volley, fired as Yatim lay on the streetcar floor.
(The initial second-degree murder charge was in connection to the first three shots, unleashed while Yatim was still standing.)
The attempted murder charge would be the only one that stuck, and the prosecution’s decision to splice the shooting into two counts is now considered by some within the legal community to have been a wise move. It also may prove influential. Patrick Watson, a criminologist who teaches at Wilfrid Laurier University, is researching criminal cases involving fatal police shootings and noticed the recent conviction of a Chicago police officer has parallels to Forcillo’s case. In October, Jason Van Dyke was found guilty of second-degree murder and16 counts of aggravated battery with a firearm, one for each bullet that struck the victim, Laquan McDonald.
“Some colleagues and I did speculate that this may have been emulating (Crown prosecutor Milan) Rupic’s technique — breaking down incidents into constituent parts such that the jury can decide, through video and testimony, if at any point, the officer’s decision becomes unreasonable,” Watson said.
Forcillo’s lawyers appealed the conviction to Ontario’s highest court, arguing, in part, that the shooting should not have been divided into two separate charges, because it was one continuous event.
But Ontario’s highest court found there were “obvious differences” between the circumstances of the first and second volley, namely that Yatim was laying on his back when Forcillo fired the second round.
The Ontario Court of Appeal also upheld Forcillo’s six-year sentence, which was one year higher than the mandatory minimum sentence for attempted murder with a firearm, and dismissed Forcillo’s lawyers’ arguments that it was unconstitutional.
While the Supreme Court’s decision ends the criminal case, there are still other proceedings connected to Yatim’s death, including a coroner’s inquest. A spokesperson for the coroner’s office said Thursday a date has not yet been set, as they were waiting for the appeal process to finish. Yatim’s parents have also filed separate lawsuits.
Now that the legal process is complete, Bill Yatim’s lawyer, Ed Upenieks, hopes the tragedy of Yatim’s death is not forgotten.
“There’s so much more that we can, and should, do.”