Toronto Star

Forcillo’s team cites ‘fresh evidence’ in appeal

Lawyers seek new trial in Yatim shooting, saying ‘stress response’ research supports cop’s defence

- WENDY GILLIS CRIME REPORTER

The legal team representi­ng the Toronto police officer convicted of attempted murder in the death of Sammy Yatim says there is new evidence “capable of tipping the scales” on the case’s controvers­ial outcome — and argues it should be heard at a new trial.

Documents filed at the Ontario Court of Appeal provide greater detail about the so-called “fresh evidence” lawyers for Const. James Forcillo argue should be heard in court — research they say sheds new light on the phenomenon of “critical incident stress.”

That proposed evidence — a recent study examining Toronto police officers’ response in dangerous situations — advances the “scientific understand­ing of the stress response in the law enforcemen­t context,” according to written arguments prepared by Michael Lacy, Joseph Wilkinson and Bryan Badali.

The issue is of critical relevance to the suspended officer’s defence on the allimporta­nt “second volley” of bullets — the six shots Forcillo fired while Yatim was on the floor of a streetcar, already shot by three of Forcillo’s bullets.

Forcillo testified that he’d had an honest belief that Yatim was rearming himself and getting up — a claim plainly disproven by the video evidence of the shooting.

But the officer’s lawyers now say there is research backing up how and why Forcillo’s “distorted” perception of Yatim’s movements may have been altered by a stress response.

“Had the jury had the benefit of the evidence, the jury would have been more likely to accept that (Forcillo) honestly was mistaken about (Yatim’s) movement prior to the second volley . . . ”

In turn, they may have concluded he lacked the intent to kill necessary to convict him, believing he was acting in an “instinctiv­e, impulsive or unthinking manner due to the stress response.”

Crown lawyers, meanwhile, say Forcillo’s lawyers are attempting to “revisit an issue that was addressed at trial.”

“Neither at trial nor now on appeal has anyone offered the opinion that stress can cause a person to misperceiv­e in the way (Forcillo’s lawyer) described, that is, to hallucinat­e that someone has raised their body up to a 45-degree angle off the floor,” Crown lawyers Howard Leibovich, Susan Reid and Michael Perlin write in a lengthy recent response.

Forcillo, 34, was found not guilty of second-degree murder in the July 2013 shooting death of Yatim, 18, on a Toronto streetcar. But the jury convicted the officer of attempted murder — a confusing outcome made available by the Crown’s decision to separate Forcillo’s nine shots into two distinct volleys.

Toronto police had been called to the Dundas West streetcar to investigat­e a young man armed with a knife and exposing himself. Once Forcillo arrived on scene, Yatim was alone on the streetcar, passengers having run off in a panic.

In an exchange that took place in less than a minute, Forcillo arrived on scene and shot Yatim three times as he stood at the door of the streetcar, unleashing what experts later determined was the fatal shot to Yatim’s heart. Less than six seconds later, as Yatim lay on the floor of the streetcar, Forcillo shot at him six more times, striking him five times.

It was the second volley the jury found constitute­d attempted murder, and that trial judge Justice Edward Then called an “egregious breach of trust.” Forcillo has appealed various aspects of the case and its outcome, including the sixyear sentence handed down by Then. At the Court of Appeal last fall, his lawyers argued the shots fired by Forcillowe­re part of one consecutiv­e event and should never have been split into two volleys.

In a second phase of Forcillo’s appeal, his lawyers are arguing they be allowed the rare ability to present new evidence to Ontario’s highest court.

It’s uncommon for evidence not introduced at trial to be heard at an appeal hearing; lawyers must prove it pertains to an issue central to the case and that the evidence was not available when the trial was held.

Forcillo’s lawyers have argued the new evidence provides reliable research to back up their claim that Forcillo had been experienci­ng “stress-caused perceptual distortion­s” at the time he began firing the second volley, causing him to misperceiv­e that Yatim was rising up.

The new research stems from a study by Judith Andersen, a health psychologi­st who studies the physical and mental health impact of stressful and traumatic experience­s. She conducted a study on a small group of officers from Toronto police’s Emergency Task Force.

The research involved evaluating the officers’ cortisol and cardiovasc­ular levels in various stressful scenarios, both in training and on the road. The tests came back with what Forcillo’s lawyers say is “objective biological measuremen­ts” indicating that — despite being highly trained — the officers’ stress arousal lasted for an average of five minutes and as long as 10 minutes.

According to Forcillo’s lawyers, one of the most important aspects of the study casts doubt on the testimony of now-retired Toronto deputy chief Mike Federico, a Crown witness who at trial stated the service provided training that inoculates officers against the effects of stress.

Forcillo’s lawyers say the study shows the inoculatio­n techniques used by Toronto police “do little to counteract” the effects of a natural stress response that then go on to affect the perception­s and reactions “of even highly trained” officers.

Crown lawyers argue the study adds “nothing of substance” to the evidence heard at trial. They write that the research cannot be expected to affect the result from trial and, as it was conducted in 2014, is “far from fresh.” Forcillo’s lawyers say the research was unknown at the time of the trial.

While Forcillo’s lawyers are arguing that the new evidence establishe­s it is more likely that the officer was experienci­ng “perceptual distortion­s” when he shot Yatim, Crown lawyers say the study did not examine whether there were such distortion­s caused by stress.

Mere evidence that officers have a physical response to stress does not “meaningful­ly advance the defence.”

“The evidence is inadmissib­le, and the fresh-evidence applicatio­n should be dismissed,” the Crown lawyers write.

No court dates have been scheduled so far for oral arguments on the new evidence issue. Last year, Forcillo was charged with breaching his bail conditions after he was found at another apartment, that of his fiancée, when he should have been at home. A few weeks later he was charged with perjury and attempting to obstruct justice.

His bail has since been revoked and he is in prison serving his six-year sentence while awaiting the results of the appeal. Wendy Gillis can be reached at wgillis@thestar.ca.

 ??  ?? James Forcillo is appealing his conviction for attempted murder.
James Forcillo is appealing his conviction for attempted murder.
 ??  ?? Sammy Yatim was killed by a shot to the heart when Const. James Forcillo fired a second volley of shots.
Sammy Yatim was killed by a shot to the heart when Const. James Forcillo fired a second volley of shots.

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