Judge in Yatim shooting set to decide on sentencing
Crown and defence divided on punishment deserved by officer who killed 18-`year-old in 2013
Three years and one day after Const. James Forcillo shot and killed Sammy Yatim on an empty Dundas streetcar, he will be sentenced today for attempting to kill the dying teenager by firing an addi- tional six shots.
A police officer convicted of an unjustified use of force is rare, and it’s rarer still for one to be sentenced to jail time.
But Forcillo’s case, as was repeatedly said during a five-day sentencing hearing in May, is unique — he is the only officer in Canada to have been convicted of attempted murder with a firearm while on duty, according to his lawyers. He is also one of the few people to be convicted of attempted murder when the victim died.
Forcillo, 33, faces a mandatory minimum of five years, but his lawyers have argued such a sentence would be unconstitutional and “grossly disproportionate” for a lawfully armed police officer duty-bound to act to stop a threat.
Instead, they argued he should serve two years of house arrest.
The Crown argued that by shooting at Yatim a further six times when he posed no threat, Forcillo seriously breached the duty of care he owed the teenager in a state of crisis.
An appropriate sentence is between eight and 10 years, they argued.
If Justice Edward Then rejects the defence’s constitutional challenge and bid for house arrest, it will mean there should not be a more lenient standard for police officers who use violence unlawfully, says criminal defence lawyer Reid Rusonik, who was not involved in the case.
“In that case, (police officers) should know going forward if they use force unlawfully, they will judged like anyone else,” he said.
The public does have the perception that police get a free ride in the justice system, says Alan Young, a criminal law professor at Osgoode Hall.
He says it is difficult to compare sentences handed down to officers for serious offences to non-officers because charges and convictions for police officers are uncommon.
“When an officer comes before the courts, it is very important for the court to know the significance of their ruling,” he says. “If you don’t bring accountability to law-breaking officers you erode trust between the police and the community.”
And the most divisive thing is perceived lenience given to police officers who break the law.”
Echoing a point made by Justice Then during the sentencing hearing, Carleton University criminologist Darryl Davies says the ruling must reflect that police already have special protections in the law allowing reasonable use of force.
This case has clearly highlighted the need for police training reform, he says.
“Police officers must be held to a higher standard, and that therefore means we need to rethink the whole process,” he says.
Forcillo was acquitted of seconddegree murder by a jury after a fourmonth trial that ended in January, a verdict that means the first three shots fired at Yatim, including the one that eventually killed him, were legal.
But the next six shots, fired after a pause of five seconds, went too far, the jury’s guilty verdict on the attempted murder charge suggests. Five of the six shots struck Yatim’s lower body, paralyzed from a previous shot to the spine.
It will be up to Justice Then to determine the facts of what happened that night based on the jury verdicts.
In sentencing Forcillo to jail time, Then may consider that prison is known to be particularly dangerous for police.
Officers who do go to jail are often kept in protective custody — effectively solitary confinement, says criminal lawyer Daniel Brown who was not involved in the case.
But in a case like this, involving a mandatory minimum prison sentence, it is unlikely to make a significant difference, he says.
“It is very rare for officers to spend any time in jail, even when faced with very serious offences . . . but here there is no creative way around the sentence the judge must impose.”
In the case touted as most similar to Forcillo’s, that of an RCMP officer in Alberta who was convicted of manslaughter with a firearm after shooting an inmate, the officer served three months of his four-year sen- tence in 2006 before being granted full parole.
Should Forcillo be sentenced to jail time, he is expected to seek bail pending appeal of his conviction and sentence, and may be released the same day.
He has already filed a notice of appeal on his conviction. His main argument is that the jury should not have been allowed to consider the murder charge and attempted murder as separate offences, because both charges stem from one continuous act, and as a result the verdicts are inconsistent.
He also argues Then erred by refusing to allow the defence to present certain pieces of evidence to the jury, including testimony on “suicide-bycop.”
It could take more than a year for the Court of Appeal to hear the case and rule on it.
Depending on the result, the case could go to the Supreme Court of Canada.
Forcillo also faces a police tribunal hearing that has been postponed until the sentencing is complete.