Photo by: Richard Lautens/getstock
What will be the cops' defence?
The raw video footage is incriminating. It was all over in 90 seconds.
It'll be difficult for Constable James Forcillo's lawyers to argue that the officer feared for his life, the standard defence in police shootings that usually gets cops off the hook. At no time while Yatim is standing at the front of the streetcar does he appear to make a threatening move toward Forcillo and the clutch of other officers confronting him.
The security camera nearby at Dundas and Bellwoods that recorded the video in which Yatim can partially be seen shows him only slightly shuffling his feet before Forcillo shoots three times, then another six times.
But it's the video we haven't seen yet, the one shot by the security camera inside the streetcar, that may prove more instrumental to Forcillo's case - at least judging by the broad hints dropped by his lawyer, Peter Brauti.
That footage may not shed much light on the standoff between Yatim and Forcillo, but it will show the minutes leading up to the confrontation, when passengers were scared off the streetcar by Yatim's brandishing a knife and exposing himself.
That'll be crucial for setting the stage for the argument that police were responding to a volatile and unpredictable situation, and will be used to explain their amped-up response.
Much has been made of why the streetcar doors weren't closed and Yatim left to cool his heels.
But the defence could argue that this would have posed more of a danger to the public, allowing Yatim to commandeer the streetcar and put other people's lives in danger.
There's a basis for that defence: cops are still spooked by the high-profile death of Sergeant Ryan Russell in 2011, run down by the driver of a stolen snowplow.
What are the odds of a conviction?
The short answer: it depends how hard the Crown Attorney's office is willing to push.
The two things in Forcillo's favour: the presumption of innocence - the threshold of "beyond a reasonable doubt" required to convict, the bar for which is arguably set higher for cops.
Forcillo faces second-degree murder, which comes with a maximum 25-year sentence. This case puts the very reputation of the justice system on the line.
Clouding the picture: the political culture in the Crown Attorney's office.
The last time T.O. cops were brought up on serious charges, the corruption case involving six drug squad officers, the case got lost in a 15-year legal quagmire and ended with their walking away with minor penalties, most of them with full pensions intact.
A public inquiry was called for by the Ontario Criminal Lawyers' Association into the Crown's handling of that case, which at one point got tossed by a judge over the "glacial pace" of disclosure.
The Liberals had just been re-elected in 2007 and Chris Bentley appointed attorney general - which is not to suggest interference, although it's fair to say the Grits under premier Dalton McGuinty didn't exactly push the envelope on matters related to civilian oversight of police. That's especially true as it relates to the powers of the Special Investigations Unit.
The arm's-length agency charged with investigating police wrongdoing has probed some 441 police-related deaths (in custody and shootings) in its 18 years. The number that have resulted in serious charges can be counted on one hand.
That fact doesn't tell the whole story, but it's difficult to overlook the role politics plays, by accident or design, when it comes to matters involving the police.
Those charged with steering Forcillo's case through the Attorney General's ministry include some of the same bureaucrats who've been upholding the status quo for many years.
For example, James Cornish, the assistant deputy attorney general for criminal law, was at one time a director of the SIU. His four-year tenure is widely considered one of the worst in the unit's history. It was during Cornish's reign that the Ontario ombudsman's office announced a wide-ranging probe of the agency after what was described as a troubling increase in the number of complaints against it.
Ian Scott, the unit's current director, is leaving his post in October after a tumultuous five-year run. (There's no other kind for an SIU chief). The results of his efforts to get police forces to comply with the Police Services Act duty to "cooperate fully" in SIU investigations have been mixed.
It's why some policing reformers have suggested creating an "obstruction of a peace officer" provision in the Criminal Code for non-cooperation with the SIU. Others have suggested removing the SIU from under the umbrella of the Attorney General altogether.
Scott was in the papers again last week pointing out Chief Bill Blair's propensity to ignore his written requests for cooperation in investigations.
It's not clear how the Toronto police are assisting the SIU in the Forcillo investigation. Twenty-two officers have been designated as witnesses. But it's worrying that we've yet to hear anything about the senior officer who fired his taser at Yatim after he was felled by Forcillo's bullets.
Meanwhile, it seems the province's efforts to find a replacement for Scott have hit a snag. Word is, a number of applicants who'd expressed an interest in the position have since pulled their names from the running. It's a thankless job.
Was racial profiling a factor?
A provocative question, but fair given the otherwise inexplicable trajectory of events that night.
Nothing in the video footage suggests any method to the madness, no consideration of the incident management intervention model (IMIM)police are supposed to use to defuse such situations.
According to the IMIM, "The primary duty of a police officer is to preserve and protect life."
It goes on to say that "when a situation escalates dangerously, or when the consequence of continued officer intervention seriously increases danger to anyone, the option to tactically reposition may be considered appropriate."
No thought whatsoever seems to have been given to disengaging from the Yatim situation. Was that simply the result of inadequate training? The video evidence suggests a more deep-rooted problem: a police culture of aggression and intimidation.
Says NDP justice critic Jagmeet Singh, "If the police exist to serve and protect the public, then their training and demeanour should reflect it."
Singh says there is a "systemic problem of police misusing and overusing force."
What's really behind giving more front-line cops tasers?
Certainly it's a boon for the burgeoning security industry.
When the 2007 killing of Robert Dziekanski, who was tasered five times by the RCMP, sparked a review of use of the weapon, Taser International hired a Hill & Knowlton lobbyist, a former adviser to the PM and former public safety minister Stockwell Day, to bend the ears of legislators in Ottawa.
The province's announcement it would give more cops tasers had more to do with an Ontario Provincial Police case before the labour arbitration board than with the Yatim shooting.
The Ontario Association of Chiefs of Police (OACP) has been calling for tasers since 2007, arguing that it's impractical to only equip senior officers with tasers, given the distances police have to travel in remote communities. Public Safety Minister Madeleine Meilleur's right-hand man, Ian Davidson, the current deputy minister of community safety, is a former president of OACP.
That the announcement has provided political cover for Toronto police - at least for now - is a fortunate turn for Bill Blair.
But Police Services Board chair Alok Mukherjee is on a collision course with the chief on this one.
"There is a large cost involved, and I have no idea how that would be paid for at a time of continuing budget restraints," he tells me.
"Second, and perhaps more importantly from a policy perspective, I continue to emphasize the need to contain, disengage from and de-escalate situations involving people in mental health crisis, and I do not want a too-quick resort to lethal or non-lethal weapons," he adds.
What does it all mean for Bill Blair?
Trouble ahead. Trouble behind.
The chief is getting it with both barrels from reformers who think he's not doing enough to get to the bottom of the Yatim shooting or, for that matter, keep his cops honest.
Blair has fallen out of favour with those who once praised his embrace of more diversity in police recruitment. He may be the best chief we've had in a long time, if not ever, according to some. But that only makes him the best of a very bad bunch.
His most vociferous critics have included defence lawyer Julian Falconer, who's known for choosing his words carefully. Falconer is now representing the Yatim family.
Last week, Blair was re-calibrating after Dennis O'Connor, the former justice he appointed to oversee a review of the Yatim shooting, pulled out. Frank Iacobucci is taking his place.
But that was only after objections were raised by the families of other victims of police shootings over O'Connor's affiliation with Borden Ladner Gervais. That firm is known for defending cops in some questionable cases in the past. That it never occurred to the chief that there might be a conflict is worrisome.
When it comes to civilian oversight of police, Chief Blair has a terrible record. Why should the Yatim shooting be any different?