The verdict is in.
Toronto Police Constable James Forcillo (32) has been found guilty of attempted murder in the 2013 shooting death of Sammy Yatim (18).
He was found not guilty of charges of second degree murder and manslaughter.
Forcillo pled not guilty to both charges at the start of his trial which began on October 20, 2015 in the Toronto Superior Court of Justice.
The charge of attempt murder with a firearm comes with a mandatory minimum sentence of four (4) years incarceration.
Forcillo remains on bail pending sentencing and further court proceedings.
A Rare Move
It’s been described as a perplexing strategy.
After reviewing the case, Forcillo prosecutors added the charge of attempt murder.
Legal analysts were puzzled with the apparent contradiction, how can the Crown allege Forcillo murdered and attempted to murder Sammy Yatim?
The larger question, “Can someone be convicted of attempting to murder a person who was actually killed?”
It made perfect sense from the prosecutor’s standpoint.
The theory was not complex and appeared to be congruent with forensic evidence.
The Crown alleged the first volley of three (3) shots were the fatal rounds that killed Yatim.
Medical evidence indicated Yatim would have died from the injuries sustained during the first volley of shots whether or not Forcillo continued to shoot. Those first three shots pierced Yatim’s heart, shattered his spine (paralyzing him from the mid-chest down) and fractured his arm.
Five (5) of the six (6) shots fired in the second volley struck Yatim in the lower part of his body, were non-lethal, and did not contribute to his death. The Crown alleged Forcillo knew Yatim was incapacitated and no longer posed a threat when he fired the second volley of shots.
As a result, his use of force constituted an attempt to kill.
In order to be justified in using deadly force, a Police Officer has to be able to articulate evidence a deadly force threat existed.
A deadly force threat requires three specific elements;
- Delivery System
In this case, the first two elements clearly existed.
The material question boils down to Yatim’s distance from Forcillo and whether he had the ability to inflict death or grievous bodily harm on him or anyone under his protection when the shots were fired.
“Did a delivery system exist when the first three shots were fired?”
“Did a delivery system exist when the next six shots were fired?”
In July of 2013, long before Forcillo was charged with second degree murder, The Police Insider conducted analysis of the Yatim shooting and identified the significant issue in the case;
“If the first burst of three (3) shots were justified, was the second burst of six (6) shots justified?”
- “If the first three (3) shot burst were deemed to be justified, that justification doesn’t automatically extend to the next six (6) shots that were fired. The justification for the other shots will also be scrutinized and must meet the same criteria used to assess the first shots fired. Once again, the Officers mindset, interpretation and articulation of the threat will be essential elements required to arrive at any conclusion regarding the secondary use of deadly force.”
- “I expect questions regarding whether a “delivery system” existed after the first three shots were fired will be a live issue in this investigation.”
It would seem the jury did not believe a delivery system existed after the first three (3) shots were fired and therefore, the force used by Forcillo was not justified.
The message the jury sent was clear, Police Officers are accountable for every shot they fire in a deadly force confrontation.
If you didn’t know it before, you know it now.
Cruel and Unusual Punishment
Now that Forcillo stands convicted of attempt murder the debate turns to sentencing.
Post conviction, #Forcillo and #mandatoryminimums became trending topics on twitter.
I was interested to see a tweet by Daniel Brown @DanielBrownLaw, a Toronto based criminal defence lawyer who tweeted;
Brown is referring to the Supreme Court of Canada decision in R v Ferguson, a tragic case involving an RCMP officer who shot and killed a detainee in a holding cell in an RCMP Detachment.
The officer was charged with second degree murder but was convicted by a jury of the lesser offence of manslaughter.
Notwithstanding the mandatory minimum sentence of four years imposed by section 236 (a) of the Criminal Code for manslaughter with a firearm, the trial Judge imposed a conditional sentence of two years less a day.
In doing so, the Judge granted the officer a constitutional exemption from the four‑year sentence because, on the circumstances of this case, he found the minimum mandatory sentence constituted cruel and unusual punishment in violation of section 12 of the Canadian Charter of Rights and Freedoms.
Unfortunately for the officer, the Court of Appeal overturned the case and held the mandatory minimum sentence must be imposed.
The decision was challenged but ultimately upheld by the Supreme Court of Canada.
Canadian Justice – “And Justice for All”
The proposition that mandatory minimum sentences constitute “cruel and unusual punishment” is not an abstract or radical concept in Manitoba Justice.
On April 9, 2013, Bryce William McMillan (21) armed himself with a .22 cal rifle and proceeded to fire six (6) shots into a residence occupied by three people. A total of four (4) projectiles penetrated the home. McMillan plead guilty to a charge of “intentionally discharging a firearm.”
The charge came with a mandatory minimum sentence of four (4) years in prison.
That sentence, according to Justice John Menzies was tantamount to “cruel and unusual punishment.”
Menzies declared the minimum sentencing provision invalid and of no force or effect and sentenced McMillan to a one (1) year period of incarceration to be followed by a two (2) year period of probation.
A week earlier, Justice Colleen Suche came to a similar conclusion disregarding a mandatory three (3) year minimum sentence for Mario Phillip Adamo, a notorious Winnipeg thug she declared was not a “free actor” due to a brain injury he suffered during a baseball bat assault at the Hells Angels Clubhouse.
Police charged Adamo with a number of firearm offences after finding him in possession of a handgun, ammunition, bullet proof vest and a “hit list” of rival gang members.
Both decisions are under appeal.
It’s important to remember what the will and intent of Parliament was when they introduced mandatory minimum sentences for certain firearm related offences.
The “get tough on crime” agenda was designed to counteract the reckless use of firearms by criminals and criminal street gang members who participate in gang violence like homicide and drive by shootings.
Inconsistent sentencing was another issue mandatory minimum sentences were designed to address.
When it comes to mandatory minimum sentences the Canadian Judiciary has been predictably inconsistent in their interpretations, philosophies and application of the law.
Forcillo’s defence team intends to launch a constitutional challenge to the mandatory minimum sentence if his conviction stands.
It will be interesting to see if a rookie cop caught in a deadly force confrontation, in the line of duty, will receive the same kind of generosity our Judiciary occasionally extends to gangsters and criminal misfits.
“And justice for all.”