Weeks before appeal, Crown defends verdict in case of Toronto cop who shot teen
By The Canadian Press
TORONTO — Prosecutors say an Ontario judge was right to exclude evidence meant to suggest a troubled teen who was gunned down by a Toronto police officer four years ago was trying to commit “suicide by cop.”
By The Canadian Press
The Crown is also defending the attempted murder conviction handed down to Const. James Forcillo in the death of 18-year-old Sammy Yatim, saying it was neither unreasonable nor inconsistent with the officer’s acquittal on second-degree murder.
The arguments were laid out in documents filed with the court two weeks before Forcillo is scheduled to appeal his conviction and sentence.
The officer, who is currently on bail pending the appeal, was sentenced to six years behind bars, a year more than the mandatory minimum.
He is asking the appeal court to substitute a not-guilty verdict or order a new trial.
He is also seeking a declaration that the mandatory minimum sentence for attempted murder is unconstitutional, and wants to be granted a suspended sentence. Barring that, he wants his sentence reduced to the minimum five years.
The 2013 shooting took place on an empty streetcar and became the focus of public outrage and protests.
Forcillo fired two volleys at Yatim, who held a small knife and was exposing himself. Court heard the first round of shots was the one that killed him.
The second-degree murder charge against the officer related to the first three shots fired, while the attempted murder charge pertained to the second volley.
The Crown says excluding evidence on the possibility of “suicide by cop,” where a person behaves threateningly in order to trigger a lethal response from law enforcement, did not affect the outcome of the case.
“The appellant’s defence to attempted murder was that he fired, honestly but mistakenly believing that Mr. Yatim was getting up. He testified that had he realized that Mr. Yatim was not getting up, he would not have fired,” it said in the documents.
“None of the proposed evidence was relevant to the attempted murder count. The excluded evidence would not have assisted the appellant’s defence or changed the landscape of the case against him.”
Prosecutors also say the attempted murder conviction was not inconsistent with the acquittal on second-degree murder, since the two “arise from different factual and legal bases, which were clearly explained to the jury by both Crown and defence counsel in their opening and closing addresses, and by the trial judge in the charge to the jury.”
As for Forcillo’s request for a suspended sentence, they argue it is “both manifestly unfit and unavailable, due to the constitutionally valid minimum sentences.”
“Parliament intended the minimum sentences to apply to every person who uses an inherently dangerous lethal firearm (not just those who shoot one) in an attempt to kill another person. Those in possession of firearms — for whatever reason — can be deterred from using them unlawfully,” they say.
Court documents filed by the defence earlier this year argue Superior Court Justice Edward Then was wrong to exclude cellphone and expert evidence about the possibility of “suicide by cop.”
They say the judge should have declared a mistrial because excluding that evidence prevented the defence from countering the narrative put forward by prosecutors, which painted Yatim as a young man in crisis. The documents show Forcillo’s lawyers had intended to argue the crisis was such that it could not be de-escalated.
The defence also says Then should not have instructed jurors to consider the charge of attempted murder, saying that “as a matter of common sense, the suggestion that an accused can be legally justified in killing someone but criminally liable for attempting to kill that same person within the span of less than 10 seconds in unfathomable.”
The appeal is set to be heard Oct. 2 and 3.
– Paola Loriggio
News from © Canadian Press Enterprises Inc. 2017