James Forcillo's attempted murder conviction justified in Sammy Yatim shooting death, Crown tells appeal court
Second volley of bullets fired at Sammy Yatim was ‘significantly different’, court of appeal hears
The Ontario Court of Appeal has now heard two opposing views of how the fatal shooting of Sammy Yatim played out on a Toronto streetcar four years ago.
Toronto Police Const. James Forcillo, who was found guilty of attempted murder in the 18 year-old's death, is challenging his conviction. He was sentenced to six years in prison, but is now free on bail.
Forcillo's lawyers have put forward several grounds for appeal, including a complaint about how the nine shots fired at Yatim were interpreted during his trial.
On Monday, lawyer Michael Lacy argued that the court's splitting of the shots into two distinct volleys — separated by only 5.5 seconds — was "artificial" and led the jury to a "compromised" and "inconsistent" verdict.
Forcillo was acquitted of second degree murder as the jury found his first three shots were in self-defence, but he was convicted of attempted murder with the jury finding the next six shots were unjustified.
Crown argues trial judge was right
On Tuesday, Crown lawyer Susan Reid defended the jury's verdict by arguing the two volleys of bullets were "significantly different."
The first three shots knocked Yatim to the floor of the streetcar and paralyzed him, although it was determined at trial that he attempted to pick up the knife he had been brandishing.
Reid told the three-judge panel that the 5.5 second interval between volleys is a "significant break in time."
She said Forcillo himself testified at trial that the circumstances between the two volleys had "changed," that he "paused" during this time to consider his next move, and that he watched Yatim "re-arm" himself with the knife.
Reid also took issue with the claim made by Forcillo's lawyers on Monday that it was "absurd" for the jury to convict Forcillo of attempted murder when they also found he had justifiably killed Yatim.
She countered that Forcillo "can be criminally liable for his conduct when it has gone beyond the limits of self-defence."
Although the first three shots were justified, Reid, citing case law, argued that by the time Forcillo fired his second volley, he was no longer "cloaked in legal immunity."
What the jury didn't hear
Tuesday also saw the Crown's response to another one of Forcillo's proposed grounds for appeal, which involves evidence the defence was unable to introduce at trial.
Forcillo's lawyers argued that the jury should have seen text messages from Yatim's cellphone, a Google search he did about suicide, and expert testimony from a criminologist.
On Monday, lawyer Joseph Wilkinson told the court that evidence would have allowed the defence to put to the jury that Yatim was attempting to commit "suicide-by-cop." He said that would have countered the prosecution's portrayal of Yatim as a "person in crisis," whom Forcillo should have handled differently.
But on Tuesday, Crown lawyer Howard Leibovich argued that evidence was "unreliable", "not relevant" and rightfully withheld from the jury by trial judge Justice Edward Then.
Leibovich argued that the defence's witness on suicide-by-cop, Dr. Rick Parent, a criminologist and former police officer, was "dressed up as an expert" and his testimony "would have only wasted the jury's time."
Forcillo, who was suspended without pay by the Toronto Police Service, is also appealing his sentence. His six-year prison term is one year longer than the mandatory minimum sentence for the crime.
His lawyers will also attempt to introduce new evidence they say was not available at the time.
That matter is expected to be heard in 2018.