James Forcillo normally enters Courtroom 4-8 at the Superior Court of Justice building at 361 University well before the 10.
James Forcillo normally enters Courtroom 4-8 at the Superior Court of Justice building at 361 University well before the 10 am start to take his seat at the defence table.
If the Toronto police constable charged with second-degree murder and attempted murder in the July 27, 2013, shooting death of Sammy Yatim on a Dundas streetcar is nervous or even scared, he’s determined not to show it. Behind the tough-guy pout, he seems oddly nonchalant for a guy who’s facing jail on a murder rap.
But this trial is likely just the opening chapter in what will be an extended legal battle, if the long game his lawyers are playing – perhaps setting the stage for an appeal if necessary – is any clue.
At NOW press time Wednesday, November 25, Forcillo was expected to take the stand in his own defence, a risky legal move which will expose his actions on the night in question to cross-examination by the Crown. But Forcillo has little choice.
Like the police shooting deaths of young men in Ferguson, New York City, Chicago and beyond, there is much connecting Yatim’s killing to broader concerns about police and the impunity they’re usually granted when they kill.
As a black man concerned about community and policing issues, I’ve always thought the criminal justice system did its business in an irrevocably flawed manner where police are concerned. So it never occurred to me that my participation was needed in order for it to decide the fates – justly or otherwise – of the men and women who come before it.
But in the case of Yatim, the video of the shooting, which went viral in all its grisly detail before any media spin or legal twist could be put on it, made us all witness to police behaviour in its most shocking form.
Should Forcillo avoid conviction, it would only surprise those who haven’t already discerned what is frighteningly obvious from the proceedings so far: police lives matter more than yours.
Though eerily similar to the recent deaths of other people in crisis at the hands of Toronto police, Yatim’s was caught on video. The footage from a TTC security camera shows him being felled by three shots from Forcillo’s 9 mm Glock 22 and then five more rounds as Yatim lay mortally wounded on the streetcar floor. It’s hard to watch, causing Yatim’s mother to sob audibly in her seat in the front row each time it’s been shown on three large screens in the courtroom. It took me back to when I was 14 and watched Rodney King being brutally beaten by Los Angeles police officers. It flushed me with the same anger and sense that the law had been grossly – and perhaps irredeemably – perverted by those expected to uphold it.
Some of us were persuaded that Yatim’s death was different, that in some way he doesn’t deserve our calls for justice. After all, he exposed himself on a public transit vehicle and brandished a knife – a prohibited weapon under the Criminal Code, Forcillo’s lawyers point out – causing terrified passengers to flee. He was troubled and agitated. Most significantly, he refused to comply with police commands to disarm. The term “suicide by police” has been floated.
But the trial has allowed us to know a lot more about what Yatim did shortly before he was killed. We know he spoke confusedly with a TTC janitor at the Dundas station and asked him for a phone to make a call. Ominously, we also learned that he asked the janitor to call the police.
We now know that Yatim consumed drugs sometime before he died. Toxicologist Inger Bugyra testified that Yatim had detectable quantities of ecstasy, marijuana and a metabolite of cocaine in his body when he died.
Chad Seymour, the streetcar driver, testified that Yatim also asked him for a phone, saying he wanted to speak with his father, with whom he was sent here to live in 2008 from Aleppo, Syria. They often fought, according to friends.
Seymour jumped clear of the streetcar, and Yatim was alone on board when Forcillo and other officers arrived just outside the vehicle’s open front doors, their guns drawn. On synched audio taken from nearby cellphones, Forcillo can be heard shouting, “Drop the knife!” several times.
Then, “Drop the fucking knife.” Yatim says “No,” and, told to “drop the fucking knife,” replies, “You’re a fuckin’ pussy. You’re all pussies Everyone’s a pussy.” [See full transcipt here.]
Forcillo, speaking to Yatim, who’d retreated a short distance into the streetcar, says: “You take one step in this direction and I’m going to shoot you, I am telling you right now.” We don’t know how Yatim reacted to this warning. We don’t see his face. When he re-enters the frame, taking the slightest of steps back toward the front doors where he’d been standing just moments before, the first three shots are fired, sending him backwards and to the floor, one bullet entering his heart, another severing his spinal cord. Seconds later, another volley of six bullets, five of which cut into Yatim’s body as he lay dying.
All of this happened within less than a minute of Forcillo’s arrival on the scene.
Witnesses who were either on the streetcar prior to the fatal shooting or watching the drama from the street have said Yatim’s actions prior to being shot were more baffling than threatening.
Jesse Grasso watched the incident unfold from in front of the Black Hoof restaurant. He told the court that Yatim “looked non-responsive” and “oblivious.” In earlier testimony, Martin Baron, who made one of the street-level videos of the confrontation, said Yatim “looked nervous.” Another described him as “befuddled.”
Taken together, most of the witnesses suggested that Yatim didn’t look or act menacing. He probably looked pretty much like what he was: a young man in crisis.
The defence has painted a more threatening picture. According to its version of events, Forcillo was uncertain about what he was up against when he arrived on the scene. The “hotshot” call from police dispatchers related that there was a man with a knife on a streetcar. Forcillo did what his police training taught him to do, testified Deputy Chief Mike Federico: he fired until the perceived threat – in this case, Yatim’s refusal to drop his knife – was stopped. The inference is clear. Because he refused to drop the knife, that slight step, call it a mere shuffling of his feet, toward the streetcar doors cost him his life.
Forcillo’s lawyers have suggested that officers on the scene thought there might have been someone else on the streetcar, a potential hostage, which only raises more questions about why they didn’t call the Emergency Task Force. Defence lawyer Peter Brauti has also suggested that Yatim was experiencing “excited delirium” and that closing the streetcar doors by flipping the switch on the outside of the vehicle was not an option for fear Yatim might commandeer the vehicle “and start ripping through Toronto with 40 tonnes of steel.” Driving a streetcar is more difficult than that. I know because I’ve driven one.
But the video has also been used by the defence to sow doubt about what witnesses testified they saw.
Grasso, the witness at the Black Hoof, was convinced he’d seen the streetcar driver jump from the back doors, when in fact the video clearly shows him leaping from the front. Similarly, Baron told investigators Yatim was “absolutely frozen” prior to being shot, only to admit after seeing the video that he did appear to be moving toward the front of the streetcar.
These discrepancies may not add up to more than an attempt at deflection by the defence. There seems little doubt from the video that Forcillo screwed up. As the $2 million lawsuit filed by the Yatim’s mother and sister against Toronto police points out, “Police officers are public servants and owe a duty to care to individuals they detain or arrest.” A police officer’s first duty is the preservation of life. Clearly, that didn’t happen in Yatim’s case.
The suit alleges that Forcillo acted with malice and reckless disregard for Yatim’s life.
The court has also heard that Forcillo’s gun was loaded with .40 calibre hollow-point bullets that expand on contact and are designed to cause significant damage. Apart from Forcillo’s actions, other witnesses have testified that there was no attempt by police arriving on the scene to coordinate their efforts or defuse the situation.
But under the law, officers are not judged by a standard of perfection. Allowances have to be made in circumstances that turn deadly, because of the dangerous demands of their job, we’re constantly told.
It’s a fine line. The jury will not be charged with deciding what non-lethal options were available to Forcillo when he arrived at the scene. Rather, they’ll be asked to determine whether non-lethal alternatives were available to Forcillo at the time he fired. Arguably, that’s not so clear-cut when the police training manual considers pointing a gun a de-escalation technique. Never mind preservation of life or Forcillo’s state of mind. Never mind any of that.
Brauti is tall and broad-shouldered. He looks like he can go a few rounds. He has the look of a man with serious business to settle, and often lectures Crown witnesses who second-guess Forcillo’s actions. He dubbed the Crown’s key witness in the case, American use-of-force expert Robert Warshaw, a “Monday-morning quarterback” and “jack of all trades but master of none” before telling him, his voice dripping with sarcasm, “You’re in way over your head on this one, aren’t you?”
Warshaw held his own, mostly, under the barrage, if we can judge by the coverage in the papers. His testimony has been described as the trial’s defining moment so far.
A former police chief who has advised police forces on use-of-force policy, Warshaw testified that everything on that fateful night “went from A to Z rather quickly.” What could Forcillo have done differently? Everything. The most obvious option, said Warshaw, was to wait until Yatim calmed down on his own. Instead, Forcillo charged onto the scene yelling at him to “drop the fucking knife” – language Warshaw described as “a relic of days gone by.”
Brauti’s cross-examination of Warshaw was dramatic, if somewhat predictable.
But it’s been harder to assess the effect Brauti’s courtroom theatrics have had on the jury. At one point, he tried to slip into his questioning of Warshaw that Yatim was “within striking distance” of Forcillo while he stood on the top step of the streetcar. That would be stretching the truth.
Milan Rupic, the methodical Crown prosecutor and foil to Brauti’s forceful character, rose to object but could only muster something about Brauti’s tactics being “unfair.” It will be interesting to see if a more aggressive Rupic appears to cross-examine the defence’s reported 40-plus witnesses, but there’s no doubt at this point who’s commanding the courtroom.
Justice Edward Then, who’s presided over proceedings involving everyone from former prime ministers to out-of-control city mayors, is regarded as fair by almost all accounts. But even he is having trouble reining Brauti in, regularly having to correct statements Brauti’s made.
Some days the jury spends as much time out of the courtroom as it does hearing testimony while Forcillo’s lawyers and the Crown argue points of law.
And five weeks in, signs of fatigue are visible in some in the jury of eight women and four men. They thought they’d be done by Christmas, but it now looks like they won’t begin their deliberations until mid-January at the earliest – barring any other surprises in a trial that has been full of them.
On Friday afternoon, November 20, as the Crown was wrapping up its case, Brauti signalled that a disagreement with the Crown over an expert in the use of force that the defence has called to testify on Forcillo’s behalf may delay proceedings indefinitely. The details of that disagreement are covered by a publication ban. Suffice it to say that Forcillo’s lawyers are content to use every legal lever at their disposal.
Andrew Loku, a 45-year-old father of five who brandished a hammer after a dispute with a neighbour, was shot and killed by police in his apartment building on July 4, 2015. Witnesses heard police demand that Loku drop the hammer mere seconds before he we shot and killed.
Jermaine Carby, 33, was pulled over on a Brampton street and subsequently shot to death by Peel Regional Police on September 24, 2014. Police said he had a knife, although the Special Investigations Unit found no knife at the scene.
Michael Eligon, 29, left Toronto East General Hospital on February 3, 2012 in a hospital gown after being admitted for mental assessment. He was shot and killed by police while holding scissors.
Police responses to such killings have been almost precisely the same in their scripted denial of culpability. All the victims were shot and killed quickly, their deaths deemed justifiable because officers said they acted to protect their own lives.
But each of these men had a history of mental illness. As persons with mental health issues, their deaths are in essence system failures. It bears mentioning, however, that all of them, including Yatim, were men of colour. What role did racial profiling play, if any, in Yatim’s death? He was 14 when he immigrated to Canada. His ESL teacher testified that he could speak English, but not fluently.
At the Toronto Police Services Board meeting on November 10, Deputy Chief Federico delivered an evaluation of the Mobile Crisis Intervention Teams (MCIT) put in place to deal with people in crisis after the Yatim shooting. The review of more than 2,600 interactions since July 2014 found that those experiencing mental health crises report “more consistently positive” interactions with the MCITs than with police.
The evaluation found that clients received better information about medication and mental health resources available to them from the crisis intervention teams compared to police.
That report has been around since August, but community groups apparently only found out it would be presented to the board at the last minute, a fact that John Sewell of the Toronto Police Accountability Coalition didn’t want to read too much into in his presentation to the board, noting the ongoing Forcillo trial. The report makes 25 recommendations, including expanding MCITs, but it seems it was meant as information for the board only.
It talks a lot about the need for more police training, a subject that Sewell told the board we’ve been talking about “like a broken record” for years. “Police are not committed to the issue of dealing with mental health issues and don’t know very much about it,” said Sewell. “Culture eats training for lunch. What you have to do is change the practice.”
Indeed, we’ve known that since the coroner’s inquest into the 1997 police shooting death of medical student Edmond Yu – and nothing has changed. Yu was shot on a bus while he was in possession of a small hammer.
The trial continues.
With files from Enzo DiMatteo.
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