Wednesday, 27 January 2016

Cop convicted of attempted murder of man he previously killed.

Now that raises a question that will surely boggle the mind but there is a reasonable explanation. I will give you the explanation later in this article.

Charles Dickens wrote a fascinating story titled, Tale of Two Cities. He started his novel with the following words; “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness”                             

In this extremely lengthy article, I am telling you a true story in which I will paraphrase that great English writer, “It was the best of times, it was the worst of times, it was time of wisdom and it was also the time of foolishness” 

In this article, you are going to have a better understanding as to what really occurred on July 26, 2013 in the City of Toronto when a disturbed 18-year-old man was shot to death by a Toronto Police Service constable.

Both main characters in this story were acting foolishly and when you read this article, you will no doubt agree with my paraphrased statement. And now, I will tell you something about these two main characters in this article.

Sammy Yatim (the victim) 

He was born on November 5, 1994, and grew up with his sister, Sarah in a middle-class Christian family in Aleppo, Syria’s second city. Their father, Nabil, was a management consultant. Their parents are divorced. Sammy’s father moved to Canada in the late 1960s, while his mother stayed in Aleppo, where she practiced medicine. Sammy was sent to live with his father in Toronto in 2008 with Sarah following later. Yatim enrolled at Brébeuf College, an all-boys Catholic high school in North York, (which is part of Toronto)  where he became friends with another teenager, Jeries, a Jordanian with whom he could comfortably communicate in Arabic. Another teenager. Maghami joined the clique in the summer of 2009, when the school offered coed courses.         

Yatim and his father argued like typical teenagers and fathers do on occasion. They would argue over school or marijuana which would later turn into bigger issues. Three years ago, Yatim and his father had a massive blow up and Sammy Yatim moved out. He rented a room near Danforth Ave. and Main St., where his roommates built a bunk bed for them to sleep in.

On July 26, 2013, Jeries and Yatim were hanging out at Fairview Mall and planning a party. The pair smoked a few cigarettes. Around 10 p.m., Yatim phoned his roommate Nathan Schifitto and said he would meet him at the apartment. Alas, he didn’t meet him at the apartment as he promised. 

Toronto Police Constable James Forcillo (the shooter)

He was born on December 30th in 1982 in Montreal, Quebec. He is a second-generation Italian-Canadian. Forcillo looks older than his 31 years. He has a square, heavyset build and a wary cast to his eyes. A second-generation Italian-Canadian, he spent his early childhood in Montreal, close to his mother’s large family. His father worked in the textile industry, moving from job to job, with long stretches of money troubles in between. A job change brought the family to Toronto when Forcillo was 12. A few years after that, his father found work in California, and Forcillo and his mom split their time between Toronto and L.A. When he was 18, he moved to California to live with his dad full-time, His mother died of lung cancer shortly afterward. He enrolled in a criminal justice program, something that had interested him since high school, and graduated summa cum laude, but he wasn’t able to work without a green card. His relationship with his father soured so at age 20 he decided to come back to Toronto to pursue a career in policing. He got a job as a security guard in Toronto, and then was employed as a court services officer for three years. 

Forcillo met his future wife, Irina, in 2003, when he rented the basement apartment in her parents’ North York house. Like all cops, he’s prohibited from talking about any case that’s before the courts, including his own, but the rule doesn’t ­apply to his wife, who had agreed to be interviewed with respect to her husband’s current problem. As a manager in a financial services firm, Irina is a stylish woman, self-possessed and yet unexpectedly girlish when she smiles. She comes from a close-knit Ukrainian family that immigrated to Israel when she was seven and then to Canada when she was fifteen. You can still hear the mix of hard Russian consonants and Israeli inflections in her voice.

Forcillo was accepted as a Toronto Police Service recruit and began his training at the Ontario Police College in 2009. He graduated 12th out of 137 in his class. His expectations didn’t always match up to the ­reality. As a beat cop in the city’s downtown core, his job wasn’t glamorous. When he’d get home after a shift and Irina would push him to talk about his day, he’d say he didn’t see the sense in telling her about crack houses or suicides or the drunk who puked in his car or performing CPR on a guy who died anyway. He loved his work. He would tell Irina he couldn’t imagine doing ­anything else but he wasn’t married to the job. He was more likely to head straight home after a shift than go out for a beer with his fellow officers. Sometimes Irina would encourage him to socialize more, but he’d say that at the end of a shift he just wanted to put his hat on the wall and be a dad.

Forcillo testified that during his years on the force, he drew his gun about a dozen times without firing it at anyone until July 26, 2013 when he shot Yatim. He said that he had also drawn it during an arrest in Kensington Market, but managed to persuade two armed suspects to surrender without incident.

Now back to the fatal shooting of Sammy Yatim. You may recall that I said earlier in this article that both of these men acted foolishly on that fatal night in their lives.

Sammy Yatim’s act of foolishness                                                                                                        
Yatim was clearly in mental distress during the night he was killed and his condition had been previously deteriorating leading up to his confrontation with Forcillo, This now disturbed young man (age 18) was on a street car at the west end of Toronto on the night of July 27, 2013. Four young women got on the streetcar and found seats in the back, near where Yatim was sitting.

Soon after, he unzippered his fly and pulled out his penis. The other passengers heard a piercing scream and turned around to see passenger Bridgette McGregor jump out of her seat. Yatim had a stiletto switchblade and it looked as if he had tried to slash the woman’s throat. The panic onboard was instantaneous. The crowd surged forward on the streetcar, some rushing down the steps at the back exit, but most pushing toward the front to get as far away from Yatim as possible. Frantic passengers were screaming to get out of the streetcar as Yatim inched himself up the aisle toward them, but the doors wouldn’t open on the moving streetcar and the steps were quickly clogged with people. Yatim shouted, “Nobody get off the fucking streetcar.” All the while, he had the knife outstretched in one hand and his penis in the other hand.

The streetcar driver saw the stampede behind him and stopped the car at Bellwoods Avenue, opening both sets of doors. Passengers pushed and stumbled their way out. Some landed hard on the pavement before scrambling away. Yatim also permitted Ms. McGregor to escape.

Behind where Yatim was standing, the streetcar looked to be deserted. Suddenly, a male passenger who had been hiding between two seats popped his head up and crept towards the back doors. He stood there for several seconds, as if trying to guess whether Yatim was going to stay on the streetcar or go out the front, probably to avoid running straight into him. He decided to take his chances and ran out the back doors.

Holding a nine-inch switchblade (stiletto) in one hand and his penis in the other, Yatim then chatted with the composed TTC operator, Chad Seymour. Yatim was initially calm, and Seymour later testified that he offered to help Yatim, who told him “Everyone is trying to kill me.” Yatim then asked for a phone so that he could call his father. I have to presume that Yatim didn’t get to call his father. Seymour later testified that Yatim told him that he (Seymour) wasn’t in a hostage situation. If it had been a hostage situation, Yatim wouldn’t have let all the passengers leave the streetcar.

 By this time, several ­people outside the streetcar had phoned 911, inc­luding one of the women from the back of the streetcar, who was crying hysterically into her phone, saying, “A man tried to kill me.” The police by then were seconds away. Yatim and the operator seemed to see the flashing lights through the front window at the same moment. The operator bolted just as Yatim lunged at him with the knife. I don’t know if Yatim intended to harm him or instead prevent him from escaping.

Yeti was now alone at the front of the streetcar when ­Constable James Forcillo and his partner, Constable Iris Fleckiesen who were the first cops on the scene, rushed to the front open doorway. The only information Forcillo had when he arrived on the scene was that a man had tried to stab a girl on the streetcar. As the “roll-up” cop, Forcillo was the de facto officer in charge until a division sergeant got there. He pulled out his gun, a police-issue Glock 22 with 40-calibre hollow-point bullets, and stood roughly 12 feet away from the door, legs splayed, aiming squarely at Yatim. Like all Toronto police, Forcillo had been trained to take out his weapon only if he believed lethal force might be necessary. In other words, when a cop pulls his gun out of the holster, it’s never a bluff. He’s prepared to use it.

Why did this young man act so foolishly that night? There is no evidence that Sammy Yatim suffered from a serious mental illness notwithstanding that his behavior was weird. Perhaps it was because he had consumed quantities of three illicit drugs. Toxicological tests revealed that Yatim had consumed ecstasy (MDMA), cocaine and he also had THC, the active ingredient in marijuana, in his bloodstream. Ingesting that combo of drugs is what probably made him act so foolishly that night which in the end, resulted in his death.

Constable James Forcillo’s act of foolishness 

Forcillo wasn’t mentally ill, drunk or on drugs when he did an extremely foolish thing on the night of July 27, 2013.  

Seconds after Seymour, the streetcar driver, got out of the streetcar, Forcillo approached the front entrance with his gun drawn and yelled: “Drop the knife. Drop the knife.” Yatim raised his hands mockingly which in my opinion, was in response to a command he intended to ignore and then both men engaged in a profanity-laden shouting match while Forcillo was standing outside the streetcar while Yatim was near the steps at the front entrance of the streetcar. Yatim then stepped back a bit from the steps. After hearing the order, “Drop the knife” Yatim replied “No!” Forcillo shrieked, “Drop the fucking knife!” Yatim said “No!” again. Forcillo gave the command again and Yatim then said to Forcillo, “Nigga, Nigga.” Forcillo gave the command again and Yatim replied, “No, pussy. You’re a pussy.”

It went on and on like this and his partner then asked Yatim if he was the only person in the streetcar. He replied by saying, “Everyone is a pussy.”

Over the cacophony of competing sirens as other officers arrived at the scene, Forcillo and two other cops who had just arrived on the scene shouted at Yatim half a dozen times to drop his weapon. Every time a cop barked, “Drop the knife,” Yatim’s answer was the same: “You’re a fucking pussy.”

In my respectful opinion, it should have been obvious to all of these police officers on the scene that shouting demands at Yatim to drop his knife not only wasn’t accomplishing anything at all; it was actually increasing his stress levels. If any of these officers had any sense at all, one of them would have taken charge and spoken softly to Yatim and calmed him down.

Forcillo was by then becoming impatient so he then said to Yatim angrily, “You take one step in this direction and I’ll fucking shoot you, I’m telling you right now.” Another officer yelled, “Don’t move.” then he yelled “Drop that knife.”

Yelling at Yatim to not move were stupid statements by Forcillo and the other officer at that precise moment. Yatim had already stepped back and now Forcillo and the other officer were inadvertently daring him to step forward in their direction.

Common sense dictates that when you are dealing with a disturbed man, you don’t inadvertently put suggestions in his mind. The moment Yatim heard the words “take one step in this direction,” Yatim instinctively then took what appeared on the video to be two steps forwards, first the right leg and then the left leg toward the front of the streetcar that was roughly where he was standing seconds before he stepped back.

He wasn’t running nor lunging towards the two officers while he had the switch-blade knife in one of his hands. Forcillo barking orders and profanities were counter-effective—something you would expect to hear in an army boot camp. It is certainly not the way the police should deal with someone who is obviously disturbed. Barking orders and using profanities  aggravates the situation—which in this situation, it did. 

Behind Forcillo, passengers were talking about what had just happened on the streetcar, with some of them crying. Since Forcillo was on the scene first, and was in charge, he knew that it was his job to contain the scene and make sure that Yatim didn’t get off the streetcar wielding a weapon. He believed that Yatim could have reached Forcillo in one leap. Forcillo believed that if Yatim jumped out into the crowd with his knife, Forcillo wouldn’t have been able to use his gun without endangering the nearby  bystanders.

He warned Yatim, “If you take one more step in this direction, that’s it for you, I’m telling you right now.” Yatim turned away and stepped back into the interior of the streetcar, then appeared to make a decision. He turned to face Forcillo and took a step toward the exit.

Another cop shouted “Drop the—” but didn’t get to finish his sentence before Forcillo fired three quick shots. Yatim crumpled to the floor of the streetcar, still holding the knife. Cops were yelling “Drop it” when Forcillo squeezed off six more shots five and a half seconds later. He was the only officer to fire his gun. The cop standing on his right had his gun drawn but didn’t fire. His partner, standing a few feet to his left, never took her gun out of her holster.

It was the Forcillo and the other officers who were barking orders and not Yatim. Their barking unnecessarily escalated the final showdown. Forcillo in response to Yatim’s slight movement forward then fired the first round of bullets (consisting of three 40-calibre hollow point bullets) at Yatim. Two of the bullets went into his chest thereby fatally damaging Yatim’s heart and severing his spine while the third one had fractured his right arm. I should point out that none of the officers knew at that moment that Yatim’s spine had been severed and as such, it would be impossible for Yatim to get up off the floor.

But did Forcillo know that fact? Obviously not. Five and a half seconds later, (after Forcillo saw Yatim reaching for his knife that had slipped from his fingers) he fired six more bullets towards Yatim as he lay completely disabled and dying on the floor of the streetcar. Five of the six bullets fired in the second volley struck Yatim. They entered his abdomen, his buttocks  and his groin. The sixth bullet merely grazed the sole of Yatim’s shoes.

Forcillo had previously asked his partner to radio for a sergeant with a Taser to come to the scene and subdue Yatim. In Toronto, only division sergeants are allowed to carry Tasers. Normally, there are two road sergeants for each shift, but that night there was only one such officer on duty with 14 Division, which covers seven downtown neighbourhoods—the Annex, Kensington-Chinatown, Palmerston–Little Italy, Christie-Ossington, Trinity Bellwoods, South Parkdale and the waterfront. Forcillo’s sergeant could have been in any one of them when he got the call.

Eventually the sergeant arrived on the shooting scene and he climbed into the streetcar from the rear entrance and when he reached Yatim who was lying on his belly with had eight bullets in his body and was almost dead, he fired 50 thousand volts into Yatim with his Taser for good measure. Did this officer really believe that Yatim was going to get up off the floor? If he did, then he also believes that pigs fly. He should have waited to see if Yatim was really attempting to get up from the floor of the streetcar before firing his Taser at Yatim’s back.

However Yatim was still moving slightly and still clenching the knife, when the division sergeant arrived, darted through the rear doors and Tasered him. The crackle of the stun gun was unmistakable. Several more officers then boarded the streetcar. One of them kicked the knife away from Yatim’s hand, and it hurtled into the air, clattering against the streetcar window. Another turned Yatim over and began CPR on Yatim’s chest. Forcillo who was standing in the ­middle of the crush of cops clustered at the front door, abruptly stepped away and stood alone for a few seconds. Then another officer walked over and put his hand on Forcillo’s shoulder, leading him from the scene.

Police continued to do chest compressions on Yatim until the paramedics arrived and took over. He was officially pronounced dead at St. Michael’s Hospital early in the morning of July 27 but in my opinion, he was probably dead seconds after the remaining five bullets struck him and he was Tasered.  

What happened after the shooting? 

Within an hour, a cellphone video was posted to YouTube and quickly went viral. It was reposted on Facebook and ­Twitter and on every newscast across the city. Toronto was transfixed by the last 90 seconds of Sammy Yatim’s life.

A city-wide consensus quickly formed: this 18-year-old didn’t have to die. The police could have held their fire and waited for the ­Taser to do its work. They could have tried to talk Yatim down instead of stressing him, or shot the knife out of his hand, or used ­pepper spray or shot him in his legs. There had to be a non-lethal option available. And the question on everyone’s mind was—what kind of cop shoots at a troubled teenager nine times.

After shooting Yatim, Forcillo was taken to 14 Division. Whenever an officer has been involved in the death or serious injury of a civilian, the Special Investigations Unit (SIU) is immediately called in. The SIU, which conducts investigations when police officers are involved in incidents where someone has been seriously injured, dies or an allegation of an alleged sexual assault, acted with what had been noted as uncharacteristic speed in the shooting. Following standard SIU protocol, a sergeant took Forcillo’s gun and cellphone, and segregated him from the other cops who’d been at the scene to prevent them from comparing stories and corrupting the investigation. He spent the next several hours in an interrogation room by himself, not permitted to leave unless chaperoned by another officer. The Toronto Police Association called the firm Brauti Thorning Zibarras, the union’s go-to lawyers for high-profile police cases.

Around the time Peter Brauti (a lawyer) was watching the video, Forcillo was allowed to make a phone call to his wife so that she wouldn’t find out about the shooting on the news. When her phone rang at 2 a.m., she knew something terrible had happened: “He never calls me in the middle of the night. He said, ‘Babe?’ and I hear his voice and it’s not his usual voice. It’s a bit lower. ‘There was a shooting. I was involved in a shooting. I’m okay. It was a good shoot.’ I said, ‘Is the other person okay?’ And he said, ‘No.’ And I asked him, ‘But it was a good shoot?’ And he said, ‘Yeah. But I gotta go.” After Forcillo hung up, Irina lay in bed, her heart thumping and waited for morning.

Forcillo was allowed to leave 14 Division around 6 a.m. and was home by 7 a.m. He explained to his wife what had happened on the streetcar. Then he told her about the video, and they watched it together on the news. Irina didn’t have time to think about what she’d just seen. She had to get to work and act as if it were just an ordinary day in front of her co-workers. But she understood the enormity of those 90 seconds in both of their lives.

Within hours, reporters descended on the Forcillos’ North York home. Television vans and camera crews trying to get a picture of Forcillo and his family set up camp across the street. Journalists harassed the Forcillos’ friends, relatives and neighbours for information. Irina was bombarded with media ­requests through Facebook and Twitter, and a reporter showed up at her mother’s workplace. The Forcillos have two daughters—Alexandra is five and Nicole is three—and it became impossible to get the kids in and out of the house safely, so they temporarily moved into Irina’s parents’ house nearby.

Lawyer Peter Brauti, who was and still is representing Forcillo, regularly represents police officers in court. Forcillo was arrested at Brauti’s office the next day and taken to a holding cell at Old City Hall. A few hours later, Brauti was in front of Justice Gary Trotter with his request for bail. After being charged with second-degree murder, Forcillo’s in-laws posted his $510,000 bond, and he was released shortly afterward. The judge ordered a 9 p.m. house curfew among Forcillo’s bail conditions. There was nothing for Forcillo to do but wait. The Forcillos moved back into their house after the media ­frenzy died down, and he stayed home while Irina worked.

Irina shut down her social media accounts when threats against her husband started popping up everywhere. One anonymous person tweeted “We know where you are. Expect us.” Police removed the most serious comments and continue to investigate some, but they keep reappearing online. “Fucking pig better go down for this or shit will hit the fan. I’m not fucking kidding pigs” and “It’s way past time to have an INTERNATIONAL FRY PIG DAY! There was no reason on Earth for them to shoot that boy.” Peter Brauti, Forcillo’s lawyer received threatening emails, and a letter with a picture of the World Trade Center towers collapsing was sent to every member of his staff, suggesting that Forcillo’s actions were equally heinous.

Forcillo was shocked by the deluge of online comments and news stories. He told Irina that he sometimes wondered if there was something else he could have done on that night. Mostly, she says, he felt betrayed “I do something because nobody else wants to do it,” he told her. “I do my job, and now the same people who call in the cops to help them and protect them are telling me what I did was awful.”

Meanwhile, some 300 protestors marched from Yonge-Dundas Square to police headquarters, chanting “Justice for Sammy,” and “Jail those cops.”
Two days after Yatim’s death, almost a thousand people joined his mother, Sahar Bahadi, and 16-year-old sister, Sarah, at Yonge-Dundas Square to protest the police’s use of excessive force. The group marched west on Dundas toward 52 Division, carrying “Justice for Sammy!” signs, and chanting “Shame!” and “Think before you kill!” They stopped outside 52 Division and pushed toward the entranceway. ­Dozens of police officers held the crowd back and blocked the doors with their bicycles, while march organizers pleaded with ­protesters to stay calm. Forcillo’s critics characterized the standoff as a typical example of the cops circling the wagons around one of their own. The police were feeling like they were under siege. The actions of one cop tainting the reputation of the entire force.

Soon after Yatim’s death, Forcillo saw the department’s psychologist, which is standard for officers involved in fatal shootings, and he continued to see a psychologist. Peter Brauti, who couldn’t discuss the specifics of Forcillo’s case, but he did speak general terms about police shootings and said he had noticed a pattern. “Officers don’t usually embrace counselling at the beginning, because it’s a bit of a culture of, “I did my job.” or, “I’m supposed to be a symbol of strength or confidence for the public.”

Forcillo was reinstated to desk duty in February 2014 but was not permitted to carry a weapon or wear his uniform. His assignment to Crime Stoppers caused another flare of outrage across the city. A Facebook group calling itself Sammy’s Fight Back for Justice issued a statement: “We are extremely disappointed that a police officer charged with second-degree murder of which there is ample video evidence is being allowed to return to duty.” These people have forgotten that unless a person is convicted of a crime, he or she is presumed to be innocent. Further, Forcillo wasn’t convicted of second degree murder. He was convicted of attempted murder albeit that too is a serious crime.

I should point out that if he wasn’t working with Crime Stoppers or doing other police work, he would still be paid his salary (as per police policy) and that would be hundreds of thousands of taxpayer’s dollars being spent needlessly while he was at home doing nothing.

The hearing and the trial 

Forcillo’s preliminary hearing began in April 2014 and lasted four weeks. Preliminaries give both sides the chance to hear evidence that will be presented at the trial. Of course, a judge can also dismiss a case against an accused person if he or she is satisfied that there isn’t sufficient evidence to go on with a full trial.

As standard practice in most criminal cases, the judge, Richard LeDressay at the preliminary hearing issued a publication ban on any evidence presented at the pretrial. This is done to protect the jury pool from being tainted—an increasingly difficult task in high-profile cases when viral images flood the media and practically anyone who watches the news on TV will have seen them.

In late July of 2014, the Crown added a charge of attempted murder, which was done in case they were unable to convict Forcillo on the second degree murder charge. The law is quite clear. Persons charged with both when one person is killed cannot be convicted of both charges since the conviction (if there is one) has to be based one or the other charge.

The trial didn’t begin until the end of 2015. The Crown (prosecutor) argued that Yatim’s death was brought about by a criminal act and that Forcillo could not justify the shooting. The prosecutor focused on alternative choices Forcillo could have made before firing his gun. He could have waited for the sergeant who was bringing the Taser. He could have backed up to create more distance between himself and Yatim. He could have closed the streetcar doors from the outside. (there is a switch at the outside front of the streetcar that closes the doors of streetcars when the operator steps outside) The prosecutor zeroed in on the fact that Forcillo was the only cop to fire, that he clearly interpreted the threat differently than the other officers at the scene. And as to be expected, the prosecutor hammered away at the unnecessary six shots he fired five and a half seconds later after his first three shots put Yatim on the streetcar floor as proof that he used excessive force when he then fired six more shots at Yatim.

On the other side, the defence lawyer argued that every action Forcillo took was consistent with his training. That he had good reason to fear for his life and the lives of the people on the street. That he was charged with the responsibility of making a split-second decision in a chaotic situation, and that’s exactly what he did.

The jury heard, among other things, about police training, rogue cops, troubled teenagers, illegal drugs, adrenalin dumps, sightlines, ballistics, biased media and cop culture. They had to sift through a mountain of evidence, including a 90-second video that can’t possibly tell the whole story. I saw the video and as far as I am concerned, it tells a great deal of what was seen and heard.

The Yatim family hired Julian Falconer, a civil rights activist and the city’s top lawyer for the families of people killed or seriously injured by the police. Falconer conducted his own investigation into the shooting and he filed a multimillion-dollar civil action against Forcillo and two ­other officers at the scene, as well as police Chief Bill Blair and the ­Toronto Police Services Board, alleging cruelty, excessive force and insufficient training. I should point out that even if Forcillo had been found not guilty of those two charges, he could still be held liable in civil court.

Three official investigations were also launched in the wake of the shooting. Chief Blair called for an independent review to examine how police respond to ­emotionally disturbed people, and, in late July, the former Supreme Court Justice Frank Iacobucci who was called upon to research police shootings released his sweeping report, which included 84 recommendations ranging from increased training to outfitting front-line cops with Tasers and body cameras. The Ontario ombudsman, André Marin, opened an investigation into use-of-force guidelines, including de-escalation techniques. And Ontario’s police watchdog—the Office of the Independent Police Review Director—launched its own review of use-of-force tactics involving people in crisis.

The training of police officers 

When police officers talk about use of force, they’re referring to the way they deploy all options at their disposal, from bare hands to pepper spray to batons to guns. For Toronto police, the training begins during the two-month program at the Ontario Police College in Aylmer and continues with ­mandatory refresher courses every year. The cornerstone of the college’s teaching is the Use-of-Force Model, which is depicted as a wheel of concentric circles dictating how cops should respond to threatening situations. One circle lists the suspect’s behaviour, moving clockwise from “cooperative” to “resistant” to “assaultive” to “serious bodily harm or death.” The others outline an officer’s response options, from simple observation to physical intervention (like tackling a suspect) to lethal force. The model is designed to address the fluid, unpredictable nature of police encounters, and it demands that cops continually assess and reassess a situation as it unfolds, making decisions on the fly.

When a police officer regards a situation as being potentially life-threatening, the only response option on the wheel is lethal force. An edged weapon confrontation (someone brandishing a knife, a pair of scissors, an axe etc.) qualifies: faced with such weapons, police officers will automatically take out their guns. They’re trained to aim at a suspect’s chest (which gives them the largest target and the best chance of immobilizing the person), and they’re told to shoot until the threat is neutralized—that is, until the suspect can’t continue the attack.

Police officers are also taught to create distance between themselves and the person they’re facing down, so there’s enough time to respond if the suspect charges towards the officer. This used to be called the 21-foot rule, but it’s now referred to as a reactionary gap and generally considered to be closer to 30 feet. (forcillo was much closer to Yatim than 30 feet)  Like the Use-of-Force Model, a reactionary gap is specific to each situation. An officer considers how big, small, fast, slow, heavy or high a suspect is, among other factors, and decides how quickly he might close the gap.

At the police college, cadets are placed in a series of simulations at the Outdoor Village, an elaborate set that includes sidewalks, storefronts and sections of an apartment building. There is scaffolding in place above the scenes where class members can observe. In one scenario, a cadet stands in a courtyard with a bag over his head. The bag is removed and he sees a man sitting on a bench reading a book, about 20 feet away. The bag is put back on and then removed again. Now the man is running straight at him with a knife in his hand. Can the cadet pull out his gun in time? Does he have time to back up? The answer is almost always no. In another scenario, a cadet knocks on a door to respond to what he believes is a simple noise complaint. Instead, when the door opens, he’s ambushed; a man with a fake knife charges at the cadet and tackles him to the ground, stabbing him multiple times. The knives in these simulations are electrically charged to deliver a jolt. The thinking is that electrical shocks drive home the point of the injuries a cop will sustain if he doesn’t successfully subdue the assailant.

In another exercise, a cadet uses a red marker as a knife to attack a fellow cadet, who’s wearing a white jumpsuit. The first cadet slashes and stabs away while the one in white does ­everything he can to prevent the marker from making contact. ­Despite his best efforts, the cadet in white is covered in red at the end of the exercise. An instructor then points out, based on the density of the ink and the location on the body, which of the red marks would constitute fatal wounds.

Cadets also learn communication strategies, roughly 12 hours over their two months at the academy. And officers are required to attend a three-day seminar every year that looks at the latest de-escalation techniques. But unlike what we see on police procedurals, a real cop won’t strike up a heartfelt conversation with someone holding a lethal weapon. They’re told to focus a suspect with clear, sharp commands—“Drop the knife”—in order to control the situation. Soft talk—“You seem upset; how can I help?”—the kind of communication that might put an unstable person at ease, can’t happen until the suspect lets go of the weapon but it should be tried in the hopes that after being asked to drop the weapon, he does that.

At a coroner’s inquest into the police shootings of three ­mentally disturbed people, , Ron Hoffman, who trains new recruits in mental health issues, testified that police get extensive schooling in de-escalation ­techniques—both how to identify people in crisis and how to talk them down. When a suspect is threatening a cop with a sharp object, however, de-escalation isn’t an option—the officer is expected to act.

The vast majority of arrests in Toronto—99 per cent—­happen without use of force. And use-of-force incidents are on the ­decline. Toronto police officers are generally good at defusing ­incendiary situations, except when they come up against emotionally disturbed ­assailants. Like what was shown in three previous inquest hearings, Sammy ­Yatim was in distress—erratic and unpredictable, but not a hardened criminal. The Toronto Police Service has Mobile Crisis Intervention Teams (MCIT) that partner with mental health nurses with specially trained cops, but ­MCITs can only assist in confrontational situations once a suspect has been disarmed, and they’re not on call after 11p.m. If police officers don’t adopt a better way of dealing with disturbed people face to face, Torontos front-line cops may continue to make bad assessments in the blink of an eye under the worst possible circumstances.

Simulations and other training techniques can only do so much to prepare ­cadets for ­real-life encounters in the field. The best training for high-pressure situations happens on the job. The more experience cops have, the higher their tolerance for threat, and the less likely they are to shoot prematurely. Yet there’s a shortage of veteran front-line cops in the Toronto Police Service.

The ­average street cop, like Forcillo, has been doing it for less than seven years. In a job that’s increasingly stressful, messy, thankless and dangerous, the rewards just aren’t high enough, so they’re moving into specialized units or opting for desk jobs or training positions as early as possible in their careers. Police call the phenomenon a flight from the front.

The Crown could have done a better job of examining Forcillo’s own record and admission that he’d drawn his gun “about a dozen times” in just three and a half years on the force.

Why was he so quick to pull out his gun from his holster? That might have gone a long way toward discrediting Forcillo’s rationale for shooting Yatim at all.

As first reported by National Post columnist Christie Blatchford, Forcillo’s unusual reliance on his firearm had been detected by the force’s early warning radar a year before he shot Yatim who was on Dundas streetcar. The system triggers an alert whenever an officer points his firearm at someone three times in a 12-month period.

Apparently his flag came up a couple of times, and his supervisors pulled him into an office and said, `Look, because you’ve been flagged a certain number of times, we have to review your use of force to make sure it’s OK,” 

The afermath

The fatal shooting of Yatim was investigated and subsequently James Forcillo was suspended from the Toronto Police Service with pay and charged with second degree murder and the attempted murder of Sammy Yatim.  Now I realize that there may be some confusion with respect to these charges as they applied to the death of that young man.

Second degree murder is murder in which there has been a deliberate killing carried out without premedication which does not fall under any of the categories of first degree murder. Second degree murder also occurs occurs where the person who causes the death of a human being means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and is reckless as to whether or not death ensues. The minimum sentence for that crime is life in prison with no parole for 10 years, but sentences can be as long as life in prison without parole for 25 years.

If Forcillo was convicted of second degree murder, he would face life in prison without the possibility of parole for at least 10 years. It’s an unusual charge, ­especially for a police officer in the line of duty. In fact, Forcillo is one of only three Ontario police officers to face a second-degree murder charge since the SIU was formed in 1990. One of them, Constable Randy Martin of York Regional Police, was acquitted in 2000 in the shooting death of 44-year-old Tony Romagnuolo during the attempted arrest of Romagnuolo’s 17-year-old son. A fist fight had broken out on the front lawn of the Romagnuolos’ home, and in the struggle Martin shot and killed the father.

The other case took four years to resolve. In 2010, ­David ­Cavanagh, a Toronto Emergency Task Force officer, was charged in the death of 26-year-old Eric Osawe after a drug and weapons raid went horribly wrong. While ­Cavanagh and Osawe were struggling on the floor, ­Cavanagh’s sub­machine gun accidentally discharged and shot Osawe in the back. The Crown, in conjunction with the SIU, originally charged Cavanagh with manslaughter, but the judge dismissed the case before it could go to trial. The Crown appealed, upping the charge to second-degree murder and the case was dismissed for a second time—the judge ruled Osawe’s death a “tragic but accidental confluence of circumstances that occurred in a high-pressure and high-risk situation.” The Crown appealed again, but the case was dismissed for the third and final time. ­Cavanagh saw a ­psychiatrist and was on medication for anxiety and ­insomnia for a time. He’s still a cop but has not been in the field as an ETF officer since the shooting.

There are defences to the charge of second degree murder especially for  police officers if they have a reasonable fear that their life is at risk if they don’t shoot the person who is threatening them with a gun, a knife or any other dangerous weapon.  

In his closing arguments at the trial, defence lawyer, Brauti said Forcillo's perception of Yatim's behaviour and the threat it posed to him were important when the jury was considering its verdict. It was this kind of defence that Forcillo’s jury had to decide. The issue before the jury was not if Forcillo’s life was at risk but rather if Forcillo had a very good reason to believe that his life really was at risk.

It didn’t make any sense to the jury since they were aware that Yatim was laying on the floor of the streetcar when Forcillo fired the second volley of six bullets at Yatim. Forcillo and others couldn’t have been at risk of being attacked by Yatim at that moment.

During the trial while giving his summation to the jury, the defence lawyer told the jury that  it didn't matter if Yatim intended to attack Forcillo; it was enough that the officer believed he would. The jury didn’t accept that premise either.

Yatim’s cocky posture in the face of repeated commands that he “Drop the knife!” was appalling, however he’ had not uttered any threats, but merely  displayed harmless sarcastic teenage bravado. Crown prosecutor Milan Rupic told the jury that Forcillo wanted to assert his authority over a “mouthy, mocking teenager” without trying to make a connection with a person he knew was in crisis.

In my opinion, Forcillo was primed for a physical fight but there  was never a physical fight. Yatim hadn’t used his switchblade to injure any of the passengers on the streetcar, though he’d certainly made threatening gestures and terrified some of them. Yatim, who’d taken illicit drugs earlier that night, had also exposed himself and waved a knife at passengers but Forcillo was unaware of that when he drew his firearm as he raced along the side of the streetcar and took a shoot-ready position just beyond the front exit.                         

His partner who obviously used her common sense hadn’t drawn her gun from her holster when it appeared to her that there was no immediate danger to her or anyone else. Yatim was safely contained inside the empty streetcar. Yatim was not running or charging or lunging forward as if to attack anyone. On top of that, there were multiple guns pointed at him in the event he were to commence an attack. That being as it was, Forcillo was not at any risk of being attacked by Yatim.

But why (as he claimed in his testimony in court) was he is fear of his life?  Forcillo was 12 feet from the exit, and Yatim wasn't even standing right at the exit (as far as can be told from the admittedly grainy video) He never descended even one of the steps leading to the exit and was several feet back in the streetcar. Unless we're to believe that Yatim could somehow leap 15 feet or so from a standing position (presumably bursting through the ceiling of the bus in order to get enough altitude to complete this incredible jump), there was no reason for Forcillo to be in fear for his life.

Forcillo testified that it was the flick of the stiletto being opened from the handle that convinced him that Yatim was going to lunge towards him for the purpose of knifing him to death. If while Yatim was holding the knife in his hand with a finger on the button that brings the knife out of the handle of the knife and he inadvertently pressed the button; that by itself wouldn’t mean that he intended to kill Forcillo.

Forcillo testified that once Yatim fell to the streetcar floor after the first 3 shots, he could see him reach for his switchblade again, rolling his shoulders to scoop it up with his left hand. Forcillo says that's when he saw the teen take a two-handed hold on the knife and sit up at a 45-degree angle. He thought that Yatim was preparing to attack him and so he fired off another half-dozen .40-calibre hollow-point bullets at the already dying teenager.

Quite frankly, I find it difficult to believe that after one of Forcillo’s .40-calibre hollow point bullets severed Yatim’s spine in the first volley, he would later be able to sit up. Under cross examination, Forcillo admitted after seeing the video that he was wrong is saying that Yatim had tried to sit up at 45-degrees after his spine was severed.

There was one disturbing fact that came out of that trial. Crown prosecutor Milan Rupic had derided much of the witness officers’ testimony, called them liars circling the police wagons. It is common knowledge that some cops do lie in court. A nationwide Toronto Star investigation in 2012 showed that judges are frequently finding that officers lie under oath, resulting in their cases subsequently being dismissed.

But in his instructions, Justice Edward Then directed the Forcillo jurors to ignore Rupic’s comments.  He said, “The police are as likely or not to tell the truth as any other witness.”

The witness officers backed up the account that Constable James Forcillo told to the jury in the shooting death of 18-year-old Yatim. Those officer testified under oath describing details of the shootings those officers demonstrably could not have known and couldn’t have seen, to wit, Yatim with a crazed look in his eyes after he’d already been hit three times, Yatim attempting to rise and continue his attack despite the fact that no attack had actually materialized such as lifting his torso at a 45-degree angle that was disproved by video evidence. That kind of perjury by police officers makes their testimony under oath highly suspect. 

There was no crowd of innocent bystanders surrounding the exit. They were some considerable distance from the streetcar. Only a number of armed police officers were close to the exit of the streetcar so no harm would come to the bystanders. That being so, he didn’t have to shoot Yatim to protect the bystanders.  In my opinion, Forcillo didn’t need to fire his gun at all. He knew that a sergeant carrying a Taser would be coming soon. He should have waited for the sergeant to arrive. If fact the sergeant arrived seconds after Forcillo fired his gun at Yatim.

The trail judge gave the jury his instructions over a period of two days. He told them that they cannot decide whether or not Forcillo followed the training he received from the police service. The judge said that poor execution of training doesn’t automatically equate to criminal conduct. The jury was also told by the judge that they do not need to find a motive for Forcillo's actions.  

The defence lawyer suspected that Sammy Yatim was depressed, desperate and wanted to die and needed a police officer to do the killing for him. The jurors didn’t hear that information as it was only stated to the judge in the judge’s chambers in the presence of the prosecutor. The judge told the lawyer that he couldn’t make that statement to the jurors in his summation since that information wasn’t relevant.  

The reason for the judge’s decision is obvious. First of all, if Yatim really wanted to be killed by a cop, he wouldn’t have just stood at the top of the steps of the streetcar. He would have bolted out of the streetcar with his stiletto in hand towards Forcillo. He didn’t do that at all. Second, even if Yatim had really wanted to be killed by a cop before he entered the streetcar, who can say for certain that he had those same thoughts moments before he was shot by Forcillo?  And third, even if Forcillo wanted to be killed by a cop, Forcillo wouldn’t be off the hook if he granted Yatim’s wish by killing him. At the time of the shooting, it was and still is against the law to assist a person bent on suicide and if Forcillo had killed him for that reason, he would be guilty of murder. 

The judge also said that it isn’t up to the jury to condemn or forgive Forcillo for what he did to Yatim. Instead, they are to determine whether or not the two specific shootings of Yatim by Constable Forcillo were criminal acts as specified in the Criminal Code.

The jury had a real task in front of them. Let me explain to you the law as it refers to guilt and innocence. First of all, an accused is presumed to be innocence until a judge or jury rules otherwise.

There is one very important word that is applicable in making that decision. The word is willfully.

There can be no doubt that the word willfully applies in criminal trials as it is important since it covers every element of an offence. Consequently, it applies not only to the act which it was alleged contributed to the offence, but also to the accused's state of mind at the time he committed the offence. It is open to the trial judge or a jury to register a conviction if either of them have concluded on the evidence presented to them that either the accused knew that what he had done was against the law or that he honestly believed that what he had done was according to the law.

The term mens rea which means “criminal intent” also plays an important role in a court or jury decision. If no criminal intent is established, it is very difficult for a judge or jury to establish guilt.

However, there is another means in which a person who had successfully raised the defence of “no criminal intent” can still be found guilty of the crime he is charged with having committed.

The words, criminal negligence plays an important role in reaching the decisions to be made.  At issue in this particular case is whether or not the requisite mens rea for criminal negligence can be determined by an objective test based on the activity giving rise to the charges against Forcillo. Further, a subjective test as to the voluntary assumption of risk on the part of the accused is also required as proof of a criminal wrongdoing by Forcillo.

Over six days, for more than 40 hours, 11 people huddled around a non-descript boardroom table in the courthouse tasked with the toughest job on earth—sitting in judgment of their fellow human being. No matter what the verdict of the jury was, Forcillo’s stupidity cost Yatim his life, grief to both Forcillo’s and Yatim’s families, shock to the community, shame to the police and a bad future for Forcillo.

On the morning of January 25, 2016, the jury reached a verdict after six days of deliberations. The jury had found Toronto police Constable James Forcillo guilty of attempted murder in the 2013 shooting death of Sammy Yatim, but not guilty of second-degree murder. The jury believed Forcillo was justified in firing the first three shots at Yatim. This is reflected in the not guilty verdict for second-degree murder. The jury found Forcillo was not justified in the second round of shots at Yatim, hence him being guilty of attempted murder. 

What the jury must have decided was that during the first volley of shots Forcillo was acting reasonably, in fear for his safety or the safety of others, and thus he was not guilty of second-degree murder or manslaughter. That was probably because Yatim took a step forward towards Forcillo.

In my opinion, I believe that their verdict of Forcillo’s guilt of attempted murder was based on what he did after he shot the first three bullets into Yatim’s body. I think he intended to finish him off even though one of the first three bullets was what really killed Yatim in the first volley. Forcillo didn’t know that then and that is why he fired the next six bullets at Yatim.  The second volley would not have killed Yatim but Forcillo didn’t know that either. And because he thought that Yatim was not yet dead as a result of him firing of the first volley, he made his attempt to kill Yatim with his final volley. Of course I can`t read what was in Forcillo`s mind when he fired the second volley so I could be wrong is my opinion as to his motive for firing the second volley of  bullets at Yatim while the dying man was laying on his belly.

Further I am mindful that since jury decisions are kept secret in Canada, I can only surmise as to how the jury may have reached the verdict that it did.

Had one of the first three bullets fired into Yatim that damaged his heart beyond repair had not been fired in the first volley but in the second volley, then I think the jury would have found him guilty of second degree murder and not guilty of attempted murder because Yatim was lying on the floor at no risk to Forcillo or anyone else when the second volley of bullets hit him.  

The penalty for attempted murder in Canada where a firearm is used in the commission of the offence, is imprisonment for life or to a minimum punishment of imprisonment for a term of four years. I believe that when the judge sentences Forcillo for the crime of attempted murder, the judge will sentence him to four years in prison. When that day arrives, I will update this article at the end of the article. Meanwhile he has been released on bail while awaiting the sentencing.

May 16th 2016 is when the sentencing arguments and motions will be heard. The court has set two weeks for the process to be undertaken.

Brauti intends to launch a stay application on May 16yh  of this year in an attempt to have the guilty verdict vacated by arguing that the verdict was unreasonable on the basis that Forcillo was simply following his training that night and therefore shouldn’t be convicted. Brauti further contends that his client’s trial was an abuse of process. He also intends to launch a constitutional challenge on the mandatory minimum prison sentence of four years arguing it is excessive punishment and ought to be thrown out. In my opinion, these challenges defy logic.

Presenting these desperate arguments by Forcillo’s defence counsel is like watching a drowning man grasping at straws hoping that they will keep him afloat. It is conceivable that Forcillo will sink below the surface of the raging sea around him with the straws encompassing him as his shroud.

While Forcillo is still suspended with pay and out on bail pending appeals, he's no longer presumed innocent. He has been convicted, though his lawyer Peter Brauti immediately said after the verdict the case is “far from over.” No doubt the appeals will go on and on until a final disposition of this tragic case comes to an end.

However, when he is sentenced to prison, he will no longer be collecting his pay from the police department. He will be dismissed from the force and he will never be employed as a police officer anywhere after he is released from prison. While in prison, he will be placed in protective custody.  

Many times when police officers in Toronto shot to death mentally disturbed persons, they were exonerated. For those who have argued for decades that Toronto police officers are too quick to shoot, too reluctant to use words over force, all too often allowed to act with impunity, the murder trial of Const. James Forcillo was an unprecedented shot at justice. The issue of police use-of-force has finally had its day in court.

Hopefully the days when a police officer goes to trial in the shooting death of a disturbed person and hopes to virtually enjoyed immunity for shooting such a person to death are gone forever.

Despite conducting trials, inquests and inquiries that have clearly demonstrated that this same tragedy is happening over and over again. It would appear that the police have not learned anything g from these tragedies. Until the police deal with the root cause of these confrontations, the increasing frequency of police encountering mentally ill individuals who are armed, threatening and incapable of rationally responding to police commands to drop their weapons, these tragedies will continue and these mentally disturbed people will continue to be killed by police officers. It is ironic when you think about it. Mentally disturbed people are for the most part killed only by police officers.—men in blue who are sworn to protect them.   

In 2014, then Toronto Police chief Bill Blair asked retired Supreme Court judge Frank Iacobucci to examine police use of force in the wake of Yatim’s fatal shooting and similar incidents examined by several inquests where no charges were laid against police.

He produced 84 recommendations regarding police procedures and training for dealing with people in crisis, but his key finding was largely overlooked, even though Iacobucci couldn’t have made it more obvious.

Noting it was beyond the scope of his mandate to recommend changes only to Toronto Police Service procedures, Iacobucci wrote:

“There is a huge issue that warrants further elaboration: The mental health system. One cannot properly deal with the subject of police encounters with people in crisis and not consider the availability of access to mental health and other services that can play a role in the tragic outcomes for people in crisis in encounters with the police. Police officers, because of their 24/7 availability and experience in dealing with human conflict and disturbances, are inexorably drawn into mental and emotional fields involving individuals with personal crisis. 

“As I emphasize in the report, there will not be great improvements in police encounters with people in crisis without the participation of agencies and institutions of municipal, provincial and federal governments because, simply put, they are part of the problem and need to be involved in the solution.

“In many ways, I have found this reality the most distressing societal aspect of my work on the review. The effective functioning of the mental health system is essential as a means of preventing people from finding themselves in crisis in the first place.” unquote

Iacobucci used the phrase “mental health” 798 times in his 347-page report. So why were some of the police officers not paying attention to the problem of dealing with mentally disturbed individuals they encounter? 

Far too many police officers across North America have used their guns unnecessarily instead of using common sense, to de-escalate deadly confrontations. And holding police accountable for their actions on occasion is often negligible. Hopefully these kinds of blunders will go the way of the dodo birds. Until they do, this problem will continue to be a national concern.

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