What many of us feared has happened. James Forcillo has been granted bail:
Justice Eileen Gillese’s decision was released to counsel by email this morning.I guess Justice Gillese's definition of the public interest is far narrower than mine. It should bother everyone that the public's interest in seeing justice swiftly served continues to be ignored.
“The Appellant’s release, pending the determination of his appeal, poses no risk to the public as there is no risk that he would commit further offences,” Gillese wrote.
“For the reasons given, despite the seriousness of the offence for which the Appellant stands convicted, in my view, fully informed members of the community will objectively understand and accept that it is not contrary to the public interest that he be released.”
Kind of gives new meaning to the term 'contempt of court,' doesn't it?
Lorne, I think the judge was simply following the law in releasing Forcillo pending the appeal.
ReplyDeleteBut surely judges have some latitude in making such decisions, Mound. Just because an appeal is being launched should not be the basis for bail. Should the applicant not be required to show some basis for the appeal?
DeleteThe applicant is not only required to show some basis for appeal, but also that the it stands some chance of succeeding. Justice Gillese obviously thought it did. This is not a high bar, it's just designed to weed out frivolous appeals.
DeleteIn addition, the applicant must show a willingness to obey the rules of his release, and that it's not contrary to the public interest that he be released.
But how can the judge could say that Forcillo "poses no risk to the public as there is no risk that he would commit further offences"? Unless a person's in a coma or something, I don't see how that's ever the case, even in jail. But while I'm quibbling about semantics, Forcillo's out. Funny how my usual clients convicted of gun crimes stay in pending appeal and it's usually because of concerns for public safety.
It does sound like we might be dealing with a double standard here, Anon.
DeleteNo, Lorne. That would be asking the trial judge to pre-judge the appeal from his/her own decision. It would also require the defence to prepare a preliminary factum. Absent evidence of flight risk or danger to others the accused is generally spared imprisonment pending appeal.
ReplyDeleteI can only hope then, Mound, that the appeal process will move swiftly, although I guess speed is a relative term in the law. Yesterday I heard a lawyer speaking on the CBC saying that a speedy process would likely be eight months to a year.
DeleteRelease isn't automatic Judges deny release pending appeal all the time The test is, is there a reasonable chance of succeeding on appeal and does the defendant pose a risk to society or flight
ReplyDeleteThe judge seems to have answered the second question in her ruling, Kev, but the first was not addressed, which is the thing that bothers me the most.
DeleteThe defence is appealing both conviction and sentence. The core argument seems to be that it is a "logical absurdity" that Forcillo was acquitted of murder for the first volley but convicted of attempted murder for the second.
ReplyDeleteIt's the sort of verdict that reflects a jury hopelessly confused by a deeply technical theory of guilt. This case ought to have been tried by judge alone.
It will be interesting to see if the Court of Appeal sends the whole business back for retrial. That may be the risk that Forcillo is running. I would love to see the Crown get a second crack at Forcillo on the 2nd degree murder charge.
A lawyer not involved in the case had this to say in today's Star, Mound:
DeleteIf the Crown doesn’t appeal Forcillo’s acquittal on the charge of second-degree murder, it is highly unlikely there will be a new trial on the murder charge, said criminal appeals lawyer Michael Dineen, who was not involved in the case.
I'm assuming the Crown will appeal the acquittal, Lorne, given that they'll have to appear on Forcillo's appeal anyway. His arguments would seem to support a Crown appeal on the main charge.
ReplyDelete