Not up to Yatim jury to condemn, forgive
Jurors in the Sammy Yatim shooting must not decide the case on whether or not Toronto Police Constable James Forcillo followed his training.
Forcillo is pleading not guilty to one count of second- degree murder and one of attempted murder in the July 27, 2013, streetcar shooting of the 18- year- old Yatim.
The 32- year- old officer fired nine shots in two volleys at Yatim, who was standing at the open front doors of the vehicle, brandishing a switchblade.
The murder charge is tied to the first volley of three shots, which were the lethal ones, while the attempted murder charge relates to the second volley of six shots, which were fired when the teenager was lying on the floor at the front of the streetcar, and five of which struck his lower body.
Though several experts testified at length during the trial about police use of force and how in particular Toronto officers are trained, Ontario Superior Court Judge Ed Then repeated several times Monday that poor execution of training doesn’t automatically equate to criminal conduct.
“It is not a standard to be used to decide whether the officer’s conduct was criminal,” the judge said.
Rather, he said, the standard is found in Section 25 of the Criminal Code, which gives police officers the right to use “as much force as necessary” if they have reasonable grounds to believe it’s necessary to protect themselves or someone else from death or grievous bodily harm.
Forcillo, who testified in his own defence, told the jurors he fired the first volley because he feared Yatim was about to come off the streetcar and launch an attack. In fact, as another expert testified, Yatim had taken only a step and a half forward, or about 50 centimetres.
Forcillo said he fired the second volley five seconds later because he saw the teen’s left arm move to hold the knife with a doublehanded grip, and thought he saw him rising up to renew the attack.
After seeing the extensive video in the case, Forcillo said he realized he was wrong, and that Yatim had in fact moved up very little.
What no one, including Forcillo, knew at the time was that one of the first shots had severed Yatim’s spine and l eft him paralyzed from the mid- chest down.
The others tore through his heart and fractured his right arm.
The evidence about Toronto training — key prosecution expert Robert Warshaw, for instance, said Forcillo had abandoned his training on verbal de- escalation and trying alternatives to l ethal f orce and Toronto Deputy Chief Mike Federico said officers are expected, if not obliged, to talk to suspects throughout an encounter, even if they are armed — should be used by jurors only to assist them in determining “what was going on in Officer Forcillo’s mind,” the judge said.
He was giving the jurors final instructions on the law and applicable legal principles before they retire, either Tuesday or Wednesday, to begin deliberations.
He described the tandem of judge and jury as “partners in the pursuit of justice” and said his job is “to help you make a decision, not to tell you what decision to make.”
While jurors are to follow the judge’s instructions on what the relevant law is, they are the judges of the facts of the case — in other words, what evidence to accept, which inferences to embrace, what witnesses to believe.
The judge reviewed some of the evidence for the jurors, but reminded them they could disagree with his summation.
He quoted
extensively f r om prosecutor Milan Rupic’s cross-examination of Forcillo, who testified in his own defence.
In that lengthy exchange, Forcillo said police are trained to “have a survivor mindset” and at one point told the prosecutor that “one way or the other … I’m going home at the end of that night.”
The shooting garnered widespread attention at the time, with some of the citizen-shot video almost immediately available on social media, and while the judge didn’t refer directly to that early publicity, he told the jurors their task here is “not to express forgiveness nor condemnation.”
A jury, any jury, has but two key jobs, he said — to make sure no innocent person is wrongly found guilty and to act as “guardians of the legal rights of the community.”
Then will continue his instructions Tuesday.