Does James Forcillo deserve bail?

Grounds for Forcillo's release Although it's not unheard of, most people convicted of attempted murder and sentenced to six years.


Grounds for Forcillo’s release Although it’s not unheard of, most people convicted of attempted murder and sentenced to six years in prison don’t get the benefit of bail. But Forcillo has appealed his conviction, and as along as the court determines that there are reasonable grounds for that, it would be hard for a judge to deny him bail.

Is Forcillo receiving preferential treatment? Anyone who has seen the video of Forcillo pumping nine shots in two bursts of gunfire into Sammy Yatim, six rounds as Yatim lay on the floor of a TTC streetcar likely paralyzed and dying, can’t help but come away thinking his actions were callous. Arguably, the oath Forcillo swore as a police officer to above all protect life, placed upon him the added responsibility when he was confronted by Yatim to ensure everyone involved walked away alive. Instead, evidence at his trial revealed Forcillo failed to follow his training to de-escalate the situation, taking all of 59 seconds to assess the situation before unleashing a deadly barrage of bullets.

Why the judge gave Forcillo the benefit of the doubt We’re in uncharted legal waters. Forcillo is the first cop in Canada to be convicted of attempted murder for something he did while on the job. There’s no legal precedent in Canada for a case like his. The courts are not immune to public opinion. And in the Yatim case, protests spilled into the streets. But it’s also no simple feat sending a cop to do time in a federal prison with hardened criminals. Its understandable why the courts would want to error, if there is an error to be made, on the side of caution once all Forcillo’s appeals are exhausted to lock him up.

What the law says Bail can be granted in cases where a serious conviction has been registered if the conviction is under appeal as long as that appeal is not deemed “frivolous” And if it can be demonstrated that bail is in the public interest.

Forcillo’s lawyers gave notice immediately after his sentencing that they plan to appeal his conviction. He spent a night in jail between his conviction and bail hearing. But it’s on the question of public interest that the decision to grant Forcillo bail turns.

To meet that test of public interest a judge must first decide if Forcillo’s release poses a risk to public safety. Chances are Forcillo is not going anywhere he’s been placed under house arrest. But second, and more importantly, the judge must decide what his release means for public confidence in the administration of justice, which is a trickier proposition.

On that question the judge must consider the seriousness of the offence and assess the merits of Forcillo’s appeal itself. Which means a determination of whether, on balance, his appeal has a chance of succeeding. Or, as the judge wrote, “whether the merits of appeal are sufficiently strong to shift the balance in favour of release.”

The judge found that, “There is strength to the Appellants grounds of appeal related to whether the indictment improperly charged a single transaction as two counts and whether the verdicts are inconsistent.” In other words, the judge found merit in the argument of Forcillo’s lawyers that the jury may have erred when they convicted the officer of attempted murder since forensic evidence revealed Yatim was already dead, killed by Forcillo’s first volley for which Forcillo was acquitted on a second degree murder charge. Forcillo’s lawyers may be trying to get him off on a technicality.

But as the judge also pointed out “public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected.”

The judge also understood how her decision to grant Forcillo bail might be viewed by the public. She gave Forcillo’s lawyers until November 9 to advise the court on the status of the appeal so that “the public will see that meaningful steps have been taken to ensure that the appeal is heard as expeditiously as possible.”

The argument against bail While Forcillo’s case marks a venture into uncharted waters, it’s also legitimate to argue he should not have been granted bail. Arguably his appeal is frivolous. The Crown argued as such at his bail hearing. But more to the point, Forcillo’s actions, as Justice Edward Then described them during his sentencing, amounted to “an egregious breach of trust.”

The judge went further: “When a police officer has committed a serious crime of violence by breaking the law which the officer is sworn to uphold, it is the duty of the court to firmly denounce that conduct in an effort to repair and affirm the trust that must exist between the community and the police to whom we entrust the use of lethal weapons.”

Forcillo not only failed to follow his training, he has failed to show any remorse. Despite video evidence to the contrary, his single-mindedness in the belief he was simply following procedure the night he killed Yatim is pathological.

The defence mounted on his behalf was also one for the history books, one Hail Mary pass after another. Forcillo’s defense pulled every legal trick in the book to try and distract the jury and bully the judge. They miscalculated.

Forcillo lied on the witness stand about seeing Yatim try to get up after he pumped three bullets into him and then another six as he lay paralyzed on the floor of the streetcar. Other officers who took the stand lied on Forcillo’s behalf. Forcillo would have been better served, the cause of justice itself would have been better served, by a more measured defense. He might have been cut some slack. But perhaps the evidence against him was too damning for anything but deception and denials.

What’s next? There’s no overriding legal principle at stake in the Forcillo case for the police union, which is footing the bill for Forcillo’s defense. But this one seems destined for the Supreme Court of Canada anyway. How would it look to the rank and file, after all, if the union didn’t try to do everything in its power to keep one of Toronto’s finest from ending up in the slammer?

On the public relations front, however, both police management and union are already distancing themselves from Forcillo’s conviction. Forcillo has been suspended without pay. Chief Mark Saunders had discretion under the Police Services Act to continue paying the officer’s salary, but clearly he understands that to do so would have sent the wrong message.

In a noticeable departure from his earlier tack on the Forcillo case, police union head Mike McCormack quoted the judge’s decision when asked for a reaction. He said that Forcillo’s actions were not a reflection of the work of the many good men and women on the force who risk their lives everyday. Indeed, two days after Forcillo’s conviction, Toronto police were dispatched to a call eerily reminiscent of the circumstances that led to Yatim’s death a man on a bus with a knife. Police successfully coaxed him off the bus. It took five hours, but nobody ended up getting killed.

enzom@nowtoronto.com | @enzodimatteo

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