Why was Toronto officer out on bail
a day after his sentencing for shooting Sammy Yatim?
Laura Hensley |
July 29, 2016
Const. James Forcillo leaves a Toronto
courthouse after a sentencing hearing on Wednesday May 18, 2016. Forcillo was
charged with second-degree murder in Sammy Yatim's death
A court’s decision to grant a disgraced Toronto police officer bail
while he appeals his attempted murder conviction may outrage the public,
but isn’t an unusual move, legal experts say.
Const. James Forcillo,
33, was granted bail Friday after he was sentenced on Thursday to six
years in prison for shooting 18-year-old Sammy Yatim on an empty
streetcar in 2013. Ontario Court of Appeal Judge Eileen Gillese ruled
that Forcillo poses no risk to the public, and there is no risk that he
would commit further offences.
Criminal lawyer and Osgoode Hall law professor Boris Bytensky said
that if someone isn’t believed to be a public threat, bail decisions are
made on whether or not the appeal appears to be “frivolous.”
“If the appeal has apparent merit…or at least part of the appeal is
arguable, then in most cases you’re going to get bail pending appeal,”
Bytensky said. “The test really becomes one of considering the apparent
strength of the appeal.”
Forcillo was charged with second-degree murder for the first volley of three
shots he fired at Yatim on July 27, 2013, which caused the Toronto teen’s death,
and attempted murder for firing another six. In January, Forcillo was acquitted
of second-degree murder, but convicted of attempted murder.
At sentencing, Justice Edward Then said that in letting loose a second volley
of shots on the teen, Forcillo committed an “egregious breach of trust” and his
sentence must serve as notice to other police officers.
In Gillese’s bail decision, the judge acknowledged that there has never been
a case such as Forcillo’s, and took the manner in which he was charged into
“There is strength to the Appellant’s grounds of appeal related to whether
the indictment improperly charged a single transaction as two counts and whether
the verdicts are inconsistent. Having found this of sufficient weight, I need
not express a view on the strength of the other main category of grounds of
appeal,” Gillese wrote.
Echoing this stance, Bytensky said the appeal will likely be based on the
Crown’s actions of dividing the case into two charges, which is “unprecedented.”
“They broke it down into murder for the first three shots and attempted for
the last six. The whole episode spans 10-12 seconds, and whether or not you
should be allowed to categorize the first three seconds as one event, and the
last nine as another event, that’s a pretty important legal question,” he said.
“And I’m not sure that it’s an easy answer.”
Yatim’s death caused public outrage in the city after a cellphone video of
the shooting went viral. Then cited the footage as “powerful evidence” that what
Forcillo said occurred on the streetcar that night did not actually happen.
Forcillo did not mistakenly believe that Yatim was getting up after being
struck with a first volley of bullets, as the officer testified in court, Then
found. Instead, Forcillo based his decision to fire again entirely on the fact
that Yatim had managed to recover his knife, he said.
Then said that under police training, that rationale alone would not justify
shooting a suspect. The judge said that the second volley of shots was “not only
contrary to (Forcillo’s) training, but unreasonable, unnecessary and excessive.”
While Forcillo’s status as a police officer may have initially granted him
“exceptional treatment” when he was released from custody the same day he was
arrested, Bytensky said, his bail “is absolutely not an example of two-tier
justice at all.”
“If anything, in my view, the fact that he’s a police officer made this
decision tougher,” he said.
“The judge not only had to consider all the other arguments that she did
consider, she also had to consider this is in the backdrop of potential public
outrage about police violence.”
With files from CP
A photo of Sammy Yatim is held by one of the
teen's friends at a Toronto courthouse after the sentencing of Const. James
Forcillo in Toronto on Thursday, July 28, 2016