Toronto

Court dismisses Const. James Forcillo's appeal in Sammy Yatim case

An Ontario court has dismissed Toronto police Const. James Forcillo's appeal of his attempted murder conviction in the shooting death of 18-year-old Sammy Yatim.

Toronto police constable appealed his conviction and 6-year prison sentence

Toronto police Const. James Forcillo had his appeal in the Sammy Yatim case denied. (Nathan Denette/Canadian Press)

An Ontario court has dismissed Toronto police Const. James Forcillo's appeal of his attempted murder conviction in the shooting death of 18-year-old Sammy Yatim. In the same decision, it opted to uphold his six-year prison sentence. 

In 2016, the trial judge sentenced Forcillo to six years in prison following an unusual verdict by the jury.

It found Forcillo not guilty of second-degree murder, but guilty of attempted murder, in the death of the 18-year-old who was holding a knife inside an empty streetcar in the early morning hours of July 27, 2013. 

Bill Yatim, Sammy's father, wrote in a statement on Monday that he was "very relieved" by Monday's decision.

"I am grateful that the conviction and original six-year sentence is being upheld. Still, Mr. Forcillo has shown no remorse," he wrote.

Ed Upenieks, the family's lawyer, said he hoped this would be the end of criminal proceedings but "time will tell."

Video of shooting sparked fierce debate

Forcillo was one of the first officers on scene that night and the only one to fire his weapon. He fired an initial three shots, which caused Yatim to fall to the floor of the streetcar, then fired a second volley of six more shots.

Police had responded to reports of a passenger carrying a weapon on a streetcar on Dundas Street West in downtown Toronto. The fatal shooting, and the fact that it was caught on video, sparked a debate across the country on appropriate use of force by police.

CBC's John Northcott on the death of Sammy Yatim, 18, who was shot fatally by Toronto police in an incident captured on video 3:31

Yatim's father acknowledged the issue in his brief statement, referring to the de-escalation technique used by a police officer during last Monday's van attack. "Police tactics and training seem to be improving," he wrote.

In October 2017, Forcillo launched an appeal, asking the Court of Appeal to substitute a not guilty verdict or order a new trial. 

Forcillo's lawyers submitted a 54-page document to the court, raising several questions about the trial and sentence by Ontario Superior Court Judge Edward Then.

They argued it made no sense to allow for the nine shots fired to be separated into two separate criminal charges.

Lawyers call charges 'unfathomable'

In a factum submitted to the court, the lawyers argue that Forcillo "appears to be the only one in the history of the Commonwealth" to be found not guilty of murdering someone, yet guilty of attempting to murder the same person "during the course of the same transaction."

They write, "As a matter of common sense, the suggestion that an accused can be legally justified in killing someone, but criminally liable for attempting to kill that same person within the span of less than 10 seconds is unfathomable." 

Forcillo was found guilty of attempted murder and sentenced in 2016.

But in Monday's judgment, the court reaffirmed the decision to separate the charges.

"There were obvious differences between the circumstances as they existed when [Forcillo] fired the first volley, and ... when he fired the second volley. Those differences could reasonably have led the jury to come to different conclusions," says the judgment. 

Sentence appeal

Michael Lacy, lead counsel in Forcillo's appeal, said his client was disappointed by the decision.

"It's a very difficult day for James," he said. "This has been a very long process for him."

Lacy said Forcillo will have an opportunity to ask the Supreme Court of Canada to consider his case — though he would have to ask the Ontario court for permission, something not granted very often.

Forcillo's lawyers disputed the sentence he received, of six years, a year more than the mandatory minimum, which they argue shouldn't have applied in this case, as he was carrying a firearm as part of his job, not as someone intending to break the law.

The judgment concluded that the six-year prison sentence was "fit" given the surrounding circumstances of the crime, including Forcillo's failure to express remorse. 

WARNING GRAPHIC CONTENT: Sammy Yatim interaction with Toronto Police on streetcar 1:21

Forcillo's appeal lawyers also argued information about Yatim's mental state should have been allowed to be heard by the jury during the trial, including the theory of "suicide by cop" — that Yatim wanted to be killed that night.

The Court of Appeal, however, agreed with the trial judge's decision not to admit that evidence.

It wrote that the evidence, which consisted of Yatim's Google searches and text messages from the months before he died, did not actually provide any insight into his state of mind on July 27, nor was it possible that Forcillo had any knowledge of Yatim's intentions. 

The judgment also said that there was no need to try to infer what Yatim was thinking that night, since his behaviour is plain to see in the video of the incident. 

Crown: Judge's rulings didn't prejudice jury

Those arguments echoed the Crown's submissions, which argued in its written statement to the court that the judge "properly exercised his discretion and committed no error in excluding this evidence," saying the judge's rulings did nothing to prejudice jury members against Forcillo.

The three Crown lawyers also agreed with the judge's decision to counsel jury members on both the charges of murder and attempted murder, however unusual: "The jury had to determine whether all nine of the shots that [Forcillo] fired were justified, or if the force used ... at some point became excessive."

Forcillo was initially released on bail pending the results of his appeal, though he's currently behind bars at a Toronto-area jail. His bail was revoked after he was charged with perjury and attempting to obstruct justice in connection to allegedly breaching his bail conditions.

About the Author

Lorenda Reddekopp

Reporter, CBC Toronto

Lorenda reports on national and international news, as well as local stories based in Toronto. She grew up in small-town Saskatchewan and spent three years reporting from Guatemala.