Thursday, January 28, 2016

More On James Forcillo

H/t Toronto Star

In response to yesterday's post, both the Salamander and the Mound of Sound offered some interesting commentary. The Salamander has experience in dealing with troubled and armed youth, as you will see, and The Mound has had careers both in journalism and the law. I am therefore reproducing their respective observations below:
.. the slow motion process of the Forcillo trial re the killing of Sammy Yatim has come to a temporary junction point. the toronto newstalk jocks can't get enough of expert opinion, so called public sentiment & various views from officialdom. In the past I described my own experiences, to the estimable Mound.. wherein I was called upon to deal with emotionally disturbed teens, drug addicted teens and triple maximum security juveniles.. I was never armed by the way.

Sammy Yatim was troubled, delusional & psychotic.. 1/2 of a collision looking for the other 1/2 .. that's very clear via video evidence, medical history & post mortem toxicology. He was 'out there' .. 'crispy' & as likely to try and swim to Rochester as he was to confront a dozen armed police.

But the killing is really about fearful Forcillo, a known hothead cop who'd pulled his gun a dozen times in 3 years. So lets keep the event very very concise, shall we? Most anyone has seen the various videos of Sammy Yatim's last moments & is aware of Forcillo's 'defense'.

Of course I'll paint it in a slightly different light.. as I've been there, done it, got the t-shirt.. dealing with delusional drug addled teens.. with a weapon.. and nobody died!

Forcillo and his female partner arrived on scene as a seemingly damn cool TTC driver gave up and left his streetcar. 'Taking charge' .. so to speak, Forcillo confronted the teen from a close but safe distance, shouting profanity laden 'orders' as his memory challenged partner holstered her weapon.

In the midst of numerous armed cops beside and around him, Forcillo feared for his life, such was the threat of knife wielding Sammy Yatim, up there inside a streetcar. Really now? Armed cops standing on either side of him, behind him, at the rear doors etc.. and Forcillo thought the teen could fly like a witch and get to him from the streetcar, without descending the steps & covering the 10 foot gap to that crowd of armed cops?

Forcillo exemplifies 'failure' .. the 'fearful' defense is so limp that its to laugh at.. but the Force must close ranks. In reality I suspect other cops curse Forcillo on a daily basis. The idea that his 'training' was to do what he did in approx 50 seconds of disastrous failure is to laugh at. Somewhere right near the bottom of the Toronto Police hires in the last 5 years is Forcillo.. a weak link deserving to drive a desk.. maybe in data entry or vehicle maintenance.. To let him deal with the public, much less ever own a gun again would be a travesty.. Amen, end of story.

I'm not satisfied the judge handled the case correctly either, Lorne. The judge issued revised instructions to the jury after they had deliberated that, to me, sounded bizarre.

The whole theory of whether this was one or two shooting events was confusing. The coroner testified about the nature of the wounds inflicted at the outset, when Yatim had been standing, contrasted with the subsequent wounds from bullets that struck a prone victim. Wound paths are readily traceable.

As I understand it the forensics suggested the initial three wounds were mortal. Yatim would have died without more. How then to treat the next five wounds? The Crown chose to treat that as attempted murder.

In firing squad executions is the coup de grace administered after the initial volley a separate event? I don't see it that way. It's collateral to the first shots.

I think an appellate court might order a retrial. I suspect that better Crown counsel might rethink the prosecution theory and look beyond the 5-second pause.

If, as the video suggests, Yatim collapsed with the first shot, were the second and third really justified? Was the first shot warranted unless Yatim made some clear move to exit the streetcar such as stepping into the stairwell? That, to me, was the obvious threshold to the "self defence" business.

I think the Crown may have muddied the waters and left the judge to deliver an incoherent, confusing charge to the jury. Were I sitting on the appeal I think I would set aside both verdicts and direct a new trial.


  1. Lorne, this line of enquiry made me think back to a relatively obscure point of law I stumbled upon in law school - gulp - 40-years ago.

    It concerns whether an individual can commit murder against a person who is already mortally wounded. The victim is already bound to die. I speed things up a bit with a few more shots. Have I committed the crime of murder?

    YES, I have!

    If Yatim was still alive after receiving the initial three wounds he was still capable of being murdered by the second volley, in effect "finishing him off."

    That point of law does not seem to have been argued in Yatim's case. The jury concluded that Forcillo's second volley was intended to kill. It was attempted murder. By implication that means the jury concluded Yatim was still alive to receive the final bullets. I think it was open for the jury to find that, given Forcillo had the criminal intent to murder, evidenced by their finding of guilt on the attempt charge, the final five wounds were a sufficient proximate cause of death to ground a conviction for murder, not attempt.

    1. Your explanation makes a great deal of sense to me, Mound. Sadly, either the crown, the judge (in his charge to the jury) or the jury itself dropped the ball, allowing for what I consider to be a massive miscarriage of justice.