How to get away with homicide

A detailed look at Justice Edward Then's instructions to the jury in the case of James Forcillo


Justice Edward Then wrapped up more than two days of legal instructions to the jury in the case of Toronto Constable James Forcillo Wednesday morning, January 20, giving them a crash course in the law: what aspects of the case must be taken into account, what can’t be taken into account and what could be taken into account at jurors’ discretion during their deliberations on the charges of second-degree murder and attempted murder against Forcillo. 

What does the jury have to decide to return a guilty verdict?

The Crown has to prove its case beyond a reasonable doubt for the jurors to return a verdict of guilty, which is a daunting task in itself without the added complication that Forcillo faces two seemingly overlapping charges. 

The second-degree murder charge relates to the first three bullets fired by Forcillo, two of which fatally wounded Sammy Yatim. The attempted murder charge is for the second volley of six bullets that Forcillo fired after a five-and-a-half-second pause, once Yatim was already on the streetcar floor. 

If Forcillo killed Yatim, isn’t that homicide?

No one disputes that. But the Criminal Code divides homicide into culpable and non-culpable. Only culpable homicide – causing death by means of an unlawful act such as assault – is a crime.

When is homicide lawful?

There are two defences in play, and the onus is on the Crown to prove beyond a reasonable doubt that neither applies.

Because police must sometimes use lethal force when enforcing the law, the Criminal Code carves out an exception for them. They’re justified when they’re doing something necessary to enforce the law, when they have reasonable grounds to believe that force is necessary, when they use no more force than necessary and when, if the force is intended or likely to cause death or bodily harm, they reasonably believe it’s necessary to protect themselves or someone else.

As the judge put it, the jury must consider “whether it was reasonable for a reasonable police officer standing in [Forcillo’s] shoes, and with his physical attributes, training and experience, to come to the conclusion that the use of lethal force was necessary at the time the shots were fired.”

And if lethal force wasn’t justified?

Then we move on to a plea of self-defence, which is legitimate if Forcillo reasonably believed force was being used or threatened against him, if he shot Yatim for the purpose of defending himself, and if his conduct was reasonable in the circumstances.

So Forcillo has to prove that he was justified or acting in self-defence?

No. The burden is on the Crown to prove beyond a reasonable doubt that he wasn’t. That means disproving each and every one of the constituent elements of each defence.

And then can the jury find him guilty?

Yes, but not necessarily of murder. 

If the Crown hasn’t proved that Forcillo meant to cause Yatim’s death – or meant to cause him harm that Forcillo knew was likely to cause death and was reckless as to whether that happened – then the jury can find him guilty of manslaughter.

But what about the attempted murder charge?

The same defences are at issue, except the jurors have to put themselves in Forcillo’s shoes in the moment he fired the second volley. An action that might’ve been reasonable when Yatim was standing up and holding a knife might not have been reasonable when he was lying down.

But here there’s a third defence that may apply: mistake of fact. 

Forcillo testified that he thought Yatim was trying to pull himself up and had managed to get halfway off the ground. The videos show that wasn’t the case, but if the jurors decide Forcillo honestly believed it at the time, they have been told by the judge they must acquit him on the charge. (As of press time, however, the lawyers and the judge were discussing a possible revision to this instruction.) 

So the prosecution has an uphill battle?

That may be putting it mildly. 

The Crown would then have to prove that Forcillo specifically intended to kill Yatim while he was on the floor of the streetcar, that the second volley was an attempt to do so and that Yatim was alive at the time. If the Crown proves everything but intent, the jury could choose to return a verdict of aggravated assault instead.

Can the judge keep jurors in line if they misstep?

He can’t. Their discussions must remain exclusively among themselves. 

“If I make a mistake about the law, justice can still be done in this case,” Then told the jury at the start of his instructions. Indeed, the Crown or defence can appeal if the judge makes an error. 

“But justice will not be done if you wrongly apply the law,” he warned. “Your decisions are secret. You do not give reasons.”

So they could screw up and no one would ever know?

Yes, the jury system is a bit of a leap of faith, but the jurors were impressively attentive and alert throughout the judge’s presentation.

jonathang@nowtoronto.com | @goldsbie

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