WATCH: Criminal charges against police officers can be difficult to prove. Alan Carter reports.
TORONTO – A warning to “drop the knife,” three gunshots from Toronto police until 18-year-old Sammy Yatim dropped to the floor of a TTC streetcar, another six shots, and the buzzing sound of a Taser.
All this in videos posted to YouTube that legal experts say will be played many times for the jury, should the second-degree murder charge against subject officer Const. James Forcillo make it to trial.
A second-degree murder charge means the Crown must prove beyond a reasonable doubt that Forcillo meant to kill Yatim, or meant to cause him such grievous bodily harm that he knew would likely end up in his death, according to legal analyst Lorne Honickman.
So what do lawyers think Forcillo’s defence might look like?
“A police officer has a defence that others don’t, and that is called justification,” said Honickman.
When a police officer uses force, there’s a provision in the criminal code which authorizes the use of force because they’re a police officer.
Criminal defence lawyer Paul Burstein said both police and citizens are entitled to the benefit of the doubt if they’ve misperceived the facts in a situation –which widens the scope of justification. He said citizens have justifications like self-defence to rely on, but police have an even more expanded scope of justification when it comes to use of force.
“But it doesn’t mean that anything is justified, so that’s really what the trial will be about,” Burstein told Global News. “Not only whether he should’ve fired his gun, but whether he honestly thought he should’ve been firing his gun, and whether or not his perception of the need to fire the gun was unreasonable or not.”
Forcillo is the 11th Ontario police officer to be charged with second-degree murder or manslaughter since the 1990 inception of the Special Investigations Unit (SIU), which looks into deaths, injuries or allegations of sexual assault involving police. Nine have been cleared, and one is still before the courts following an appeal to dismissal of charges.
Toronto criminal lawyer Gregory Leslie said prosecuting police officers can be difficult for the Crown, because the issue of intent is difficult to prove as it relates to the officer’s perception of the incident.
“If the officer saw the deceased person make any motion—like towards his pocket—he could think he was going for another weapon,” said Leslie.
Another reason it may be difficult to convict officers is that citizens want to believe that police are on the right side of the laws they are there to enforce. Burstein said at a gut level, jurors are less likely to believe an officer shot someone for no good reason, and that if communities stopped believing police were protecting us, anarchy would follow.
Video: Legal analyst Lorne Honickman discusses the case on Global’s The Morning Show
Lawyer and social justice advocate Selwyn Pieters believes the trial will be mostly a “battle of experts.”
“I would imagine the defence will be calling some of the top experts in crime scene reconstruction, so they will be dissecting those video tapes in minute detail,” said Pieters. “They will go into Sammy Yatim’s life, moments before he died, in minute detail. They will get expert toxicologists, they will get expert forensic pathologists, they will go into everything to see whether he was impaired, to analyze all the firearm strikes.”
Pieters believes the defence will use Forcillo’s account of the threat that he faced, and an attempt to prove he acted as needed to stop that threat.
“But he can articulate it through other witnesses, other police witnesses on the scene, and through…use of force experts,” said Pieters.
Justification, public trust in police and expert witnesses will likely all play a role, but focus remains on the video.
“In this case, unlike many cases, there’s a video, which shows the circumstances which preceded the officer withdrawing his firearm and discharging,” said Burstein. “The video is sort of that objective witness the Crown has, to essentially force the police witnesses to come clean on what they really saw and what was really going on.”
Video: An enhanced split screen view of two videos of the Sammy Yatim shooting