On Thursday, July 28, Justice Edward Then sentenced Toronto police Constable James Forcillo to six years in prison for the attempted murder of Sammy Yatim. In most respects, Then’s written reasons embodied standard judicial equanimity, but you didn’t have to drill down very far to find statements that, in the context, are positively scorching in their condemnation of Forcillo and his conduct.
Here are the most damning passages from the decision (the full document is at bottom):
I’M NOT SAYING HE WAS LYING, BUT…
The context: Forcillo fired two sets of shots at Yatim, with a pause of about six seconds in between. The first consisted of three bullets that mortally wounded Yatim and formed the basis for the second-degree murder charge on which Forcillo was acquitted. The second volley consisted of six bullets fired while Yatim was already dying on the streetcar floor. It was these that constituted the attempted murder charge on which Forcillo was found guilty. The verdicts hinged on whether or not each set of shots might have been justified.
Forcillo testified that, prior to the second volley, he believed Yatim had not only rearmed himself with the knife he’d been brandishing, but had lifted himself up to a 45 degree angle and was therefore an imminent threat. The videos both from bystanders and the streetcar’s CCTV cameras showed that Yatim was still on the floor.
What the judge said: “The defence submits that there is no evidence that can prove beyond a reasonable doubt that Officer Forcillo was lying when he explained the basis upon which he acted…. However, the video is powerful evidence that demonstrates conclusively that what Officer Forcillo says occurred did not occur.”
Translation: Forcillo’s testimony was utterly inconsistent with reality.
…IF HE WASN’T LYING, HE MUST HAVE BEEN HALLUCINATING
The context: At trial, Laurence Miller, a Florida-based psychologist specializing in police, explained the phenomena of “priming” and “magnification,” in which extreme stress can cause officers to legitimately misperceive the severity of threats. The defence argued that Forcillo was honestly mistaken in believing Yatim had gotten himself halfway off the streetcar floor. But was that a plausible error?
What the judge said: “Dr. Miller did not testify that the phenomenon of priming and magnification can induce hallucinations so that a police officer can see things that do not exist.”
Translation: Even if Forcillo misperceived the degree of the threat posed by Yatim, that absolutely does not explain why he claims to have seen — and based his decision to continue shooting on — something that clearly did not happen.
FORCILLO FAILED TO GRASP THE MOST BASIC TENET OF HIS JOB
The context: A police officer’s duty is to protect and preserve life, including those of suspects and the public at large. Forcillo was trained that deadly force is only acceptable in response to an imminent threat of death or grievous bodily harm. But at the trial, he suggested that his primary obligation as a cop was getting home safely at night.
What the judge said: “In my view, the precipitous shooting of Mr. Yatim contrary to Officer Forcillo’s training constitutes a fundamental failure to understand his duty to preserve all life and not just his own.”
Translation: Dude, it’s not all about you.
FORCILLO NEGLECTED HIS TRAINING
The context: During sentencing arguments, the defence questioned whether the Criminal Code’s mandatory minimum sentences for certain firearm offences should apply to police officers, who are required to carry guns as part of their job. The Crown argued that because of their training, police officers should actually be held to a higher standard than members of the public when it comes to use of their weapons. The judge agreed.
What the judge said: “In my view the unlawful use of the firearm in the face of his training is a significant aggravating factor, as his training was crystal clear that the firearm be used only as a last resort to repel an imminent threat, which I have found did not obtain in this case.”
Translation: The fact that Forcillo received training in the use of his weapon but disregarded it actually makes his conduct worse.
HE WAS THIS CLOSE TO BEING A MURDERER
The context: In Canadian law, a person can be convicted of murder even if they didn’t intend to kill. If they just meant to cause harm they knew was likely to result in death and were reckless as to whether death actually occurred, that’s enough.
But attempted murder is narrower: it has to be proven beyond a reasonable doubt that the accused specifically intended to kill the victim. Therefore, in terms of moral culpability, it’s considered at least as bad as murder. To explain this point, Justice Then cited the following from R. v. Logan, a 1990 Supreme Court case.
What the judge quoted: “Quite simply, an attempted murderer is, if caught and convicted, a ‘lucky murderer.’ The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky — the ambulance arrived early, or some other fortuitous circumstance — but he still has the same killer instinct.”
Translation: Only through the good fortune of Forcillo having already killed Yatim with his earlier bullets did the second volley not turn out to be murder.
HE BREACHED THE PUBLIC’S TRUST
The context: Despite the extraordinary infrequency with which police officers are held to account by the criminal justice system, there’s an established principle in Canadian jurisprudence that police officers — at least in theory — should be held to a higher standard than their civilian counterparts for the purpose of sentencing. In his reasons, Justice Then excerpted an oft-cited passage from a 1978 Nova Scotia appeal court decision, R. v. Cusack.
What the judge quoted: “The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration” (emphasis added by Justice Then).
Translation: With great power comes great responsibility.
jonathang@nowtoronto.com | @goldsbie
