Judge dismisses Forcillo's appeal in shooting of Sammy Yatim

TORONTO - Ontario's top court has dismissed the appeal of a Toronto police officer convicted of attempted murder in the fatal shooting of a troubled teen on an empty streetcar, ruling Monday that Const. James Forcillo took “unnecessary and excessive” action during the encounter.

Forcillo fired two separate volleys at Sammy Yatim as the 18-year-old was standing alone holding a small knife on a summer night in 2013. The incident sparked public outrage after a bystander's video of what happened was made public.

In 2016, a jury acquitted Forcillo of the more serious charge of second-degree murder related to the first round of shots - which, the court heard, killed the teen - but the officer was convicted of attempted murder related to the second volley, which was fired while Yatim was lying on his back.

“It is clear that the second volley was clearly unnecessary and excessive,” Ontario's Court of Appeal wrote in its unanimous decision.

Forcillo did not say anything to Yatim before the second round of shots and knew from police training that the teen did not pose an imminent treat to anyone as he tried to hold onto his knife, the appeal court said.

“(Forcillo) knew that he was not entitled to kill Mr. Yatim in these circumstances, yet he proceeded to fire six additional rounds fixed with that lethal intent,” the court's decision said.

Another police officer standing beside Forcillo had his own weapon drawn but did not fire it, the ruling noted.

Forcillo had asked the appeal court to substitute a not-guilty verdict or order a new trial in his case. He also appealed his six-year prison sentence, which is a year more than the mandatory minimum.

In dismissing Forcillo's sentence appeal, the ruling found that “apart from his previous good character and lack of criminal record, there was little else by way of mitigation, not even an expression of remorse.”

Forcillo's lawyers said the dismissal of the appeal marked a “very difficult day” for their client.

“The appeal raised important and difficult legal questions,” Michael Lacy and Bryan Badali said in a statement. “We will carefully review the court's decision and in consultation with our client will make a decision as to whether or not we will seek leave to appeal the decision to the Supreme Court of Canada.”

Yatim's parents, Nabil Yatim and Sahar Bahadi, are relieved by the decision, their lawyer told reporters Monday afternoon.

“I guess you never know with court but they were hopeful that this would be the outcome,” said Edwin Upeniek, adding that the lengthy legal process has been stressful for the family.

“If Nabil was here today he would tell you no parent should have to go through that, but from the outset he said he had three goals - one, to find out what happened, two, to hold those (who are responsible) accountable and to make sure that Sammy's blood wasn't spilled in vain.”

Forcillo's lawyers had argued that the trial judge should not have told the jury to treat the two volleys of gunfire as separate incidents and consider Forcillo's culpability for each volley individually, the appeal court decision said.

They also alleged the trial judge “improperly excluded certain evidence” pertaining to Sammy Yatim's state of mind at the time of the incident, the decision noted.

The Court of Appeal acknowledged it was “unusual, if not unique” that Forcillo was “convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier.”

But, the appeal court justices said, the jury was not instructed to ignore the first volley of shots when considering the second and, in fact, took all the circumstances leading up to that second volley into account.

The appeal court also ruled that evidence Forcillo said was rejected trial - which included text messages, Google searches and expert testimony that the defence claimed supported the theory that Yatim wanted to be killed by police - would not have been relevant to Forcillo's actions at the time of the shooting.

“There is no suggestion that he had any reason to think that Mr. Yatim had decided to commit 'suicide by cop,”' the appeal court said.

Toronto police suspended Forcillo without pay after he was sentenced in 2016. Police spokeswoman Meaghan Gray said an internal disciplinary process - which could result in Forcillo being dismissed from the force - will proceed now that the appeal is over.

The officer faces two counts of discreditable conduct and one count of unlawful or unnecessary use of firearm under Ontario's Police Services Act, Gray said.

Forcillo was initially out on bail pending the outcome of his appeal.

In November 2017, however, he was charged with breaching the conditions of his bail after authorities found him living at the home of his new fiancee and not with his ex-wife, as the court had instructed him.

Forcillo had his bail revoked and was later charged with perjury and attempting to obstruct justice. He is scheduled to return to court on May 4 to address procedural issues related to the newest charges.