Key moments in the case
The impact of new evidence and testimony on the jury still remains to be seen
Lawyers weigh in on potential impact of evidence and testimony,
The bystander video capturing Sammy Yatim’s death in a hail of nine bullets let the public view for itself how a teenager was shot and killed by a Toronto police officer.
It shocked and galvanized the city. It prompted an ambitious review of police use of force by a retired Supreme Court judge. Many, including legal experts, believe it is the reason Toronto police Const. James Forcillo was charged with 18-year-old Yatim’s murder.
But it did not, and cannot, tell the complete story.
During Forcillo’s three-month trial, never-before-seen video, new audio recordings and testimony from key players shed new light on the case.
The jury is now deliberating whether Forcillo’s use of lethal force was necessary and reasonable, in the words of the Crown. Forcillo pleaded not guilty to second-degree murder and attempted murder.
Below is a summary of some of the new evidence and important testimony — and its potential impact, according to Toronto criminal lawyers following the case.
Streetcar video capturing Yatim nearly slashing a woman’s throat Evidence: The Crown pulled together video from various angles inside the streetcar, then combined the footage with audio from a microphone on the streetcar — triggered in emergencies — to create a never-before-seen picture of Yatim’s final moments.
The video showed just how close Yatim came to slashing a woman’s throat — how he had pulled out his penis in one hand and a knife in the other. He suddenly lunged forward, bringing the knife to Bridgette McGregor’s throat, prompting a frantic escape by terrified passengers.
Jurors have been told by Superior Court Justice Edward Then not to consider Yatim’s actions before For- cillo arrived. Analysis: In short, jurors should not give much weight to the terror Yatim caused before police arrived. But will they be able to set that aside?
“I can see jurors sitting around saying ‘Yeah, but he was about to kill somebody,’ ” said Alison Craig, a Toronto criminal lawyer. “You can’t get that out of your head.”
TTC video showing shooting from Yatim’s vantage point Evidence: The video confirms that, from the time Forcillo arrived on scene to when Yatim was shot eight times, just 50 seconds passed. Forcillo tells Yatim: “You take one step in this direction and (unclear) shoot you.”
Yatim takes what appears to be a side step toward the front of the streetcar and Forcillo fires the first round of shots.
Five-and-a-half seconds later, For- cillo fires the second burst of six shots, five of which strike Yatim. Key to Forcillo’s testimony was that he fired the second volley of shots because he believed Yatim was getting back up “to continue the fight.”
The video, however, shows Yatim was only fractionally raising himself up off the floor. In his closing statements, defence lawyer Peter Brauti called this “an honest but mistaken belief.” Analysis: “It is hard to get into the minds of a jury, but a juror could believe Forcillo when he says he thought Sammy Yatim was getting up,” says Jeff Hershberg, a Toronto criminal lawyer. “It is also quite possible he will be disbelieved.”
“It’s Forcillo’s belief that matters,” said criminal lawyer Reid Rusonik. “If the jury . . . finds it was objectively reasonable for someone having that belief to act as he did, well, he’s back on the street with a gun the next day.” Testimony from Forcillo Evidence: As expected, Forcillo — who had never addressed the public about Yatim before the trial — testified he shot Yatim because he feared for his life. “I believed Mr. Yatim was armed with a knife and was in the process of coming off the streetcar to attack me,” Forcillo said.
Forcillo added that he fired the second burst because he believed Yatim was “getting off the streetcar to continue his attack.” Analysis: Daniel Brown, a Toronto criminal lawyer, noted Forcillo neither apologized, nor admitted that in hindsight he would have done things differently. “This is a bold strategy which may backfire with the jury if they ultimately conclude that other non-lethal options were available.”
Testimony from Forcillo’s fellow officers Evidence: When they took the stand, Forcillo’s colleagues put emphasis on the danger Yatim posed — or appeared to pose. Const. Iris Fleckeisen, Forcillo’s partner, testified that Yatim’s behaviour indicated to her he was “going to get himself shot.”
Const. Robert Furyk, another officer on the scene, told the jury even after Yatim had been shot eight times, he believed “he was going to get back up and continue his fight.”
Crown attorney Milan Rupic called the officers’ testimony a “circling of wagons,” but this week Justice Then specifically instructed jurors to ignore these comments by the Crown. Analysis: John Struthers, a Toronto criminal lawyer, said it’s difficult to know if these officers will still enjoy the enhanced credibility cops on the stand often receive: “Historically, juries don’t like convicting police officers of anything.”
Use-of-force experts Evidence: Robert Warshaw, the Crown’s expert witness on use of force, said one of Forcillo’s failures was he did not try to buy himself time: Instead of firing, Forcillo could have done everything from calm talk aimed at cooling down emotions, to offering Yatim a glass of water, to using pepper spray, to throwing an object such as a baseball at Yatim.
Brauti ridiculed the expert, calling the baseball “one of the worst ideas anyone could come up with.”
The defence use-of-force expert, Ontario Police College defensive tactics trainer Paul Bonner, testified he believed Forcillo was out of reasonable options given Yatim’s knife, saying the use of pepper spray or a baton would not have been advisable. Analysis: Hershberg believes the jury could be convinced by Warshaw’s evidence, despite Brauti’s mockery.
“It is my belief that most people who watch the videos, jury or not, believe Forcillo could have done more before making that fateful decision to fire the weapon,” he said.
“One can ridicule parts of the expert’s testimony, but the bottom line is this: Was there anything other than firing many shots from a gun that could have been done?”