Wednesday 21 August 2013

Can  you  be  convicted  of second degree murder if you kill  someone  who  has  a small knife  in  his  hand?                         

I think you will find this article really interesting because it raises a question that isn’t as easy as you think it is to answer correctly. I am going to refer you to an incident that occurred in Toronto, Canada on July 6, 2013 when a police officer shot a young man nine times while the young man had a small knife in his hand.

I will clip some of the facts from my article I put in my blog on August 7th that will describe what happened.

On the 27th of July, 2013, an 18-year-old man was in a streetcar in the late hours of the evening in Toronto, Ontario and while in the streetcar, he exposed his penis and flashed a small 3-inch knife in the air. A 3-inch knife is about the size of an ordinary pocket knife. A number of the passengers in the streetcar were alarmed and some of the young women screamed. The young man told the passengers that were to leave the streetcar and they did and in less than a minute, he had the stopped streetcar all to himself as the driver of the streetcar had also left the streetcar.  The 22 police officers that ended up on the scene within a minute or so surrounded the empty streetcar with the 18-year-old man standing near the empty driver’s seat. 

Police could be heard yelling, “Drop the knife! Do it now!” The man didn’t drop the knife. A muffled voice could be heard repeatedly saying, “You’re a prick. You’re a fucking prick.” A male officer is heard saying, “If you take one step in this direction, you’re finished.”  The man on the streetcar moved slightly although he hadn’t yet stepped onto the streetcar’s front steps. At that time he wasn’t really in a position to stab or slash anyone. The police were on the sidewalk, several metres away from the entrance to the streetcar so they weren’t in any immediate danger. As a matter of fact, of the twenty-two officers on the scene, twenty of them hadn`t even un-holstered their guns. Surely a man with a three-inch knife in his hand should not have posed a real threat to the gaggle of 22 armed police officers standing several metres away especially when they all had batons and pepper spray and one had even had a Taser. In fact, Constable James Forcilli (who served on the police force for six years) fired the deadly shots after he had previously called in for an officer with a Taser to come to the scene, of which one did.

Suddenly three shots were fired. Then six more shots were fired and all nine shots were fired within 13 seconds by Constable Forcilli.  Seconds later, the officer who had arrived with a Taser entered the streetcar from a door further to the rear, and fired his Taser at the man who by now was dead on the floor.

One is forced to ask this rhetorical question. “Why did Constable Forcilli need nine bullets to bring the young man down?” After all, the victim wasn’t Superman—the man of steel. One bullet would have been sufficed and if not, the two that were fired after the first one was fired surely would have been sufficient.

My current comments on this matter

The matter was turned over to the Special Investigations Unit (SIU) which is a civilian agency responsible for investigating circumstances involving police and civilians that have resulted in a death, serious injury, or allegations of sexual assault. All full-time SIU investigators are former law enforcement personnel or have worked for law enforcement agencies. The SIU is dedicated to maintaining one law for both police and the members of the public alike, ensuring equal justice before the law among both the police and the public. Their goal is to ensure that the criminal law is applied appropriately to police conduct, as determined through independent investigations which when done properly, ensures public confidence in the police services. The director of the SIU has the authority to charge police officers with crimes.  
After a three-week investigation which involved questioning all the police officers and civilian witnesses that were on the scene, the director decided to charge Constable James Forcillo, 30, with second degree murder.

The Supreme Court of Canada has stated for a jury or a judge to determine that the accused is guilty of second degree murder, the jury or judge has to have found that the accused had the requisite intent for the offence of murder, (be it first or second degree) namely the subjective foresight that death might follow his actions.  

I doubt that anyone would doubt that firing nine bullets into a person would unquestionably kill him, especially if they are fired at his torso as police officers are trained to do.     

The real question that must be answered by the court is whether or not the officer was justified in shooting the 18-year-old youth to death.

There are circumstances in which shooting a man with a knife in his hand even if it means shooting him nine times can be justified.

Self defence and the protection of others plays an important part in cases such as this one.

In Canada there is no “qualified” defence of using excessive force in the prevention of the commission of an offence that might happen which would have the effect of reducing what would otherwise be murder to manslaughter. However, section 34 of the Canadian Criminal Code states;

“Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if he causes it under reasonable apprehension of death or grievous bodily harm from the violence of which the assault was originally made.” unquote

But in this particular case, the officer was not assaulted. In fact, he was on the sidewalk and the youth of the shooting was still in the street car therefore this defence would not be available to him.  Although, I believe he probably thought that the youth was going to come down the steps and possibly assault him but that still doesn’t mean that he was being assaulted at the time he fired the nine shots. 

Now had the street car driver been still seated in his seat and the youth turned towards him, then the police officer would be justified in shooting the youth. But the driver was in fact outside the streetcar and safe from any attack that the youth may have done to him.

The jury would have two possible offences before it to consider. They are; second degree murder and manslaughter.  Both offences require proof of an act of killing (actus reus) and the corresponding criminal intention (mens rea).  In relation to murder, the defence of provocation does not eliminate the need for proof of intention to kill, but operates as an excuse that has the effect of reducing the charge of second degree murder being reduced to one of manslaughter.

The trouble facing the officer is that the mere fact that the youth made a small step towards him when the distance between them was considerable, doesn’t really justify saying that the officer was provoked into shooting the youth as many as nine times. If anything, firing the gun nine times somehow would lead us to believe that at that moment, the officer was angry at the youth rather than being afraid of him. If that was the state of his mind when he fired those shots, the manslaughter charge would not be an option available to the jury to accept. If anything, it would definitely be second degree murder.

I know what you are thinking. If someone deliberately kills another person because he is angry, then he must be guilty of first degree murder. But that isn’t so. First degree murder is one where the perpetrator plans the murder. Suddenly killing the person on the spot because you are angry within seconds is hardly planning that person’s murder.

The charge of second degree murder could be laid against the officer for one of two reasons. The first being that he lost control of his emotions and out of anger, he shot the youth dead. The second possibility was that he was in a state of fear and without any consideration with respect whether or not the youth would die, he fired nine bullets into him. 

What is really disturbing about this particular shooting is that the officer originally fired only three bullets into the young man. Those three bullets would surely be enough to stop the young man in his tracks. But then he fired six more. Why did he fire the six more bullets?  Surely he wasn’t in a state of fear at that moment.

The jury must decide if this incident was sufficiently intense enough so as to cause the officer to lose his faculties to the point of reducing the crime of murder to manslaughter.

The case won’t be heard for quite a long time but when a verdict is reached, I will update my readers with the verdict.



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