Forcillo deemed to pose no risk, granted bail
PENDING APPEAL
• A judge’s decision to grant a disgraced Toronto police officer bail while he appeals his attempted murder conviction may outrage the public, but it isn’ t unusual, legal experts say.
Ontario Court of Appeal Judge Eileen Gillese ruled Friday Const. James Forcillo, 33, poses no risk to the public and there is no risk that he would commit further offences.
Forcillo was sentenced Thursday to six years in prison for shooting Sammy Yatim, 18, in 2013.
Boris Bytensky, a criminal lawyer and Osgoode Hall law professor, said if someone is not believed to be a public threat, bail decisions are made on whether or not the appeal appears to be “frivolous.”
“If the appeal has apparent merit ... or at least part of the appeal is arguable, then in most cases you’re going to get bail pending appeal,” he said. “The test really becomes one of considering the apparent strength of the appeal.”
Forcillo was found guilty of attempted murder in Yatim’s death, but not of second-degree murder.
Sentencing him, Justice Edward Then said that in firing a second volley of shots at the teen, Forcillo committed an “egregious breach of trust” and his sentence must serve as notice to other police officers.
In making her decision, Judge Gillese acknowledged that there has never been a case such as Forcillo’s and took the manner in which he was charged into consideration.
“There is strength to the appellant’s grounds of appeal related to whether the indictment improperly charged a single transaction as two counts and whether the verdicts are inconsistent,” she wrote.
Bytensky said the appeal will likely be based on the Crown’s actions of dividing the case into two charges, which is “unprecedented.”
“They broke it down into murder for the first three shots and attempted for the last six. The whole episode spans 10- 12 seconds, and whether or not you should be allowed to categorize the first three seconds as one event, and the last nine as another event, that’s a pretty important legal question,” he said.
Yatim’s death caused public outrage in the city after a cellphone video of the shooting went viral. Then cited the footage as “powerful evidence” that what Forcillo said occurred that night did not actually happen.
The police officer did not mistakenly believe Yatim was getting up after being struck by the first volley, as he testified, Then found. Instead, he based his decision to fire again on the fact Yatim had managed to recover his knife.
According to police training, that rationale alone would not justify shooting a suspect. The second volley of shots was “not only contrary to ( Forcillo’s) training, but unreasonable, unnecessary and excessive.”
TEST BECOMES ONE OF CONSIDERING THE APPARENT STRENGTH OF THE APPEAL.