James Forcillo jury didn't hear suicide by cop theory at his murder trial
Toronto police officer's lawyer had hoped to argue Sammy Yatim wanted to be killed night he was shot
Const. James Forcillo's defence team wanted to tell the jury at his second-degree murder trial that the teen the officer shot and killed on a streetcar in July 2013 was broke and feeling hopeless, and was trying to provoke Forcillo into taking his life in a phenomenon known as "suicide by cop."
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The jury never got to hear that theory on what 18-year-old Sammy Yatim might have been thinking on the night he was killed because Ontario Superior Court Justice Edward Then would not allow it into evidence.
But we can report it to you now as the jury has been sequestered and is now deliberating on whether Forcillo, 32, is guilty of second-degree murder and attempted murder in the teen's death.
The judge in the case called the suicide by cop theory "irrelevant" after listening to testimony during what's known as a voir dire — a hearing to decide on the admissibility of evidence where the jury isn't present.
Forcillo's lawyer, Peter Brauti, expressed frustration with the ruling.
"It's hard for me to put into words the damage this has done," Brauti told the court. "This has caused irreparable harm ... we've been made to look like our evidence was a sham."
The Crown told the jury that Forcillo wanted to ensure he made it home that night and that he didn't care if Yatim did not, describing the officer as a 'hothead" and a "bully" who did not follow proper police procedure.
The defence told the jurors it doesn't matter if Yatim intended to attack Forcillo, it was enough that the officer believed he would.
Forcillo and his partner were the first to arrive at the scene after police received a call just before midnight on July 26, 2013, about a disturbance on a streetcar. Yatim exposed himself to passengers on the vehicle and was waving a knife. Passengers and the driver stampeded off the vehicle, leaving Yatim by himself.
In a confrontation that was caught on video, Forcillo opened fire from outside the streetcar after repeatedly ordering Yatim to drop the knife he was holding — an order the teen refused to obey.
Cellphone videos from bystanders were uploaded to the web, within moments of the shots ringing out. The videos were viewed hundreds of thousands of times before Forcillo's arrest.
Many key facts in the trial that can be seen on those multiple video recordings are not in dispute. Most important, that Forcillo was the only officer who fired his gun at Yatim, who was alone on the Dundas West streetcar.
'The easiest way to kill yourself'
Forcillo's legal team called two expert witnesses during the voir dire on whether the suicide by cop theory could be introduced.
Private investigator and computer forensics expert Martin Musters testified he found a Google search titled "the easiest way to kill yourself" on Yatim's smartphone.
An article titled "How to kill yourself without feeling any pain" was selected from one of the websites that came up after the search on Jan. 7, 2013, about six months before Yatim died.
The defence also wanted to show the jury that Yatim had financial problems and his personal relationships were falling apart, pointing to a search on May 17, 2013, where he looked up "how to make money when you are broke."
July 12, 2013: "Bro, the thing is I got zero money right now."
June 17, 2013: "I don't know bro, I'm actually getting so stressed right now I don't know what to f--kin' do."
Brauti then said Yatim told friends he had to move. He messages someone named Stephanie on June 22, 2013, writing, "Yeo I got kicked out of my house ... I gotta get my stuff tomorrow."
'Lethal force encounter'
Brauti said a text sent on June 7, 2013, indicated Yatim had been fired from his job. Five days before he was killed, he texted someone named Calvin asking for a ride to the welfare office.
Brauti also called criminologist and former police officer Richard Parent, who has studied victim-precipitated suicide for 20 years.
"It is likely a suicide by cop," Parent testified during the voir dire. "Mr. Yatim organized a series of events with the intent to have his life being taken by the police."
Parent noted that Yatim ordered passengers and the driver off the streetcar and waited for police to arrive.
"He could have easily stabbed many people ... and he doesn't," Parent said. "He knows who he is dealing with. He knows what the response will be from these officers."
But after cross-examining Parent, Crown prosecutor Ian Bulmer told the judge Parent interpreted Yatim's behaviour to fit the suicide by cop theory based on evidence that is partly anecdotal and partly untested hypothesis.
The judge told Brauti that he agreed with the Crown — Forcillo couldn't have known what Yatim was thinking, so the argument is irrelevant.
He ruled the theory and evidence inadmissible.
In Brauti's closing argument to the jury, he was only able to say that "Yatim got himself shot" by Forcillo after "looking for a fight to the end."
"We have our own theory about why Mr. Yatim acted the way he did," Brauti told the jurors. "However, we did not call the evidence we wanted to on that point and you should not speculate on what the evidence might have been."
In his final instructions to the jury on Monday, Justice Then told the jurors to ignore that part of Brauti's closing submission. The judge said Yatim's state of mind during his fatal confrontation with Forcillo is not relevant.
"Only the state of mind of the defendant is of relevance," he said.
With files from James Murray and Michelle Cheung