Puzzling out the Forcillo case

The facts of the streetcar shooting death of Sammy Yatim are tragic and, by virtue both of the extensive video of the incident and media coverage, as sadly familiar as the young man’s face.

But often lost or forgotten in the public discussion are the facts of the prosecution of Toronto police Const. James Forcillo.

Unusually if not uniquely, the now 33-year-old officer was charged with both second-degree murder and attempted murder in Yatim’s death.

Since attempted murder is by definition an unsuccessful murder, and Yatim is undeniably dead, the two-headed prosecution troubled and confounded lawyers and homicide detectives from the get-go.

One criminal defence lawyer uninvolved in the case, Monte MacGregor, calls it “an intellectually constructed” prosecution that could have only been designed by the “appellate academic-oriented Crown attorneys” in the police prosecutions unit of the Ontario attorney general’s office at 720 Bay St.

Just before midnight on July 26, 2013, the 18-year-old Yatim, stoned on ecstasy and emotionally upset, abruptly pulled out a switchblade and exposed his penis before a quartet of young women on the Dundas Street vehicle, prompting them and other passengers to flee in panic and call 911.

Forcillo and his partner, Const. Iris Fleckeisen, were the first to arrive on the scene in the early hours of July 27.

Within about 50 seconds, Forcillo fired the first — and as it turned out, the lethal — volley of three shots. Five or six seconds later, he fired a second volley of six.

As with all cases of policecaused death or serious injury, the province’s Special Investigations Unit immediately took charge of the case.

Within a month, investigators charged Forcillo with second-degree murder.

Uncommon as it is for on-duty police officers to be criminally charged in connection with incidents that occur on the job, let alone with murder — Forcillo is only the fourth Ontario officer to face a murder charge for a shooting in the line of duty — it nonetheless happens, and the case proceeded normally enough.

On April 22, 2014, the preliminary hearing for Forcillo began at Toronto’s Old City Hall courts.

The standard for committal to trial is low — there must simply be some evidence upon which a reasonable jury, properly instructed, could convict — and in fact Forcillo’s defence team conceded the threshold had been met.

But a prelim also serves another purpose, in that it often offers a preview of the strength of the Crown case.

This time, it may also have told prosecutors that Forcillo actually had a defence — on video Yatim was armed and threatening, and arguably did pose a threat that might have caused Forcillo to fear for his life, thus potentially justifying his use of lethal force.

Also testifying at the preliminary hearing was Dr. Noel McAuliffe, who performed the autopsy on Yatim’s body, and he said it was the first volley of shots — one hit his heart, another shattered his spine and paralyzed him from the chest down — which killed the teen.

On June 17, 2014, Forcillo was duly committed to stand trial, surprising no one.

The curve ball came about six weeks later when senior prosecutor Milan Rupic drew up a new indictment that included a second charge — the attempted murder.

Lawyers and law professors pronounced it a curious strategy, but the main point is it was a strategy, suggesting prosecutors and the SIU were hungry for a victory.

And they were: As Crown attorney Ian Bulmer once snapped during a voir dire in the trial, while questioning a proposed police officer expert witness, “This is not a truthfinding exercise in this court, sir. This is a prosecution. Do you understand that? You are a police officer. We are not in an inquest.”

Traditionally, juries are loath to convict police officers, or at least that’s the lesson usually taken from the fact that so few of them end up being convicted. Certainly, neither the SIU nor the police prosecutors have an enviable win-loss record.

The first, lethal volley of shots was tied to the murder charge, the second volley to the attempted murder charge.

It was “almost like a tricky law school exam question,” MacGregor says, with prosecutors “splitting the shooting into two parts and asserting that Yatim is absolutely dead at a specific point in time, enabling attempted murder …”

The two-headed prosecution appears to have accomplished a couple of things.

First, it may have given the jury an escape route, an out, in that it allowed jurors to avoid a murder conviction while, as MacGregor puts it, “still appearing to find him (Forcillo) responsible” for something.

“This is the perfect example of a jury trying to find a compromise verdict,” he says, “where you split the difference and try to appease both sides.”

(No one will ever know, of course, how jurors came to their verdict, as jury deliberations remain by law secret.)

Second, it turned the justended sentencing hearing, where prosecutors argued that Ontario Superior Court Judge Ed Then should send Forcillo to jail for between eight and 10 years and defence lawyers simultaneously challenged the five-year mandatory minimum sentence for attempted murder with a firearm and argued for either a conditional or suspended sentence, into an occasionally farcical exercise, with the lawyers debating how much, or not, Yatim may have suffered because of the second, non-lethal shots.

But most importantly, it probably undermined public confidence in the administration of justice.

“The unfortunate result,” Monte MacGregor says, “is that the average layperson is left scratching their head trying to understand what happened, and even lawyers, both criminal and non-criminal, are attempting to piece together just how someone can be guilty of attempted murder when Yatim ends up dying.”

Or, put the other way, how Forcillo ends up convicted for trying to kill a dead man.

Judge Then will deliver his sentence on July 29.