Abstract
On July 27th, 2013, Sammy Yatim was shot and killed by Toronto Police Services’ Constable James Forcillo during a verbal confrontation on a streetcar as Yatim brandished a switchblade knife. Forcillo was charged, initially with second degree murder, and later attempted murder—a decision that confused media commentators as attempted murder is a lesser-and-included offense to second degree murder in Canadian law. In January 2016, Forcillo was found not guilty of second degree murder and guilty of attempted murder. Video evidence, recovered from the streetcar’s onboard security cameras, was described by the presiding judge, Justice Edward Then, as proving beyond a reasonable doubt that Forcillo’s testimony was unreliable, especially in light of other evidence. This paper examines the use of video evidence to arrive at a ‘compromise verdict’ (Gillis in ‘Compromise’ verdict in James Forcillo trial gets mixed reaction. Toronto Star, 25 January, 2016) and the paradox of being convicted of attempting to murder someone who was killed.
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Notes
That Count 2 is ‘severed’ from Count 1 is itself an interesting legal phenomenon that goes beyond the scope or explanatory capacity in the space allotted to this paper. A second paper on the issues of ‘severance and joinder’ is being prepared in concert with this paper, and a conference presentation that discusses the case law precedents for establishing the parameters of transactions in Canada is available on the author’s academia.edu page.
We include this not to either validate or contest the veracity of this claim, but rather to further illustrate the nature of Crown counsel’s working life as informed by local folklore, off-the-cuff remarks, shop talk, and so forth. For detailed analyses of juries’ tendencies to give the police officer’s the benefit of the doubt, the reader might refer to the extensive work of Philip Stinson.
Fear, in this trial, was treated in a relatively unscientific or un-psychological manner. While defense counsel employed an expert witness, Dr. Miller, a specialist in the psychology of stress and the potential impacts on individual perception, Dr. Miller did not examine Forcillo and could not speak to his state during or following the incident. For an examination of the legal reception of scientific evidence related to fear and perception, see Burns (2008).
Another interpretation of Fleckheisen’s question was that she was initiating a ‘de-escalation procedure’ by engaging Yatim in conversation. This interpretation was used against Forcillo by Crown Prosecutors; he made no effort to engage Yatim in conversation at all, contrary to his de-escalation training, and as such, the Crown argued he was acting in an unprofessional and reckless manner.
Viewers of the video encounter several difficulties in following Yatim’s movements through the security video. The first is that Yatim is wearing a black t-shirt and is positioned against a dark back-drop, making it difficult to tell if Yatim’s right shoulder ever leaves the streetcar floor. Compounding this, the security camera was some distance away and Yatim’s face is obscured. Based on repeated viewings, it certainly appears that Yatim does not raise his body as Forcillo testified, but we are much more confident in making that statement given the coroner’s findings.
It is not clear whether the Coroner would have had access to, and been able to review, the security camera footage in arriving at this conclusion, but we also suggest that this would be superfluous given how the coroner’s report presented its findings. The coroner’s report made reference to the separate volleys in relation to autopsy results rather than any other evidence. In Rupic’s opening statement, he explains to the jury that the Province of Ontario’s Chief Pathologist, Dr. Michael Pollanen, draws conclusions about Forcillo’s and Yatim’s positions during the shooting by examining Yatim’s wounds and the trajectories the bullets would have had to have been on in order to produce wounds in that pattern (2015: 23, para 72).
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Watson, P.G. The Documentary Method of [Video] Interpretation: A Paradoxical Verdict in a Police-Involved Shooting and Its Consequences for Understanding Crime on Camera. Hum Stud 41, 121–135 (2018). https://doi.org/10.1007/s10746-017-9448-2
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DOI: https://doi.org/10.1007/s10746-017-9448-2