A LEGAL PERSPECTIVE ON THE TORONTO POLICE SHOOTING OF SAMMY YATIM: WHY SIU ONLY CHARGED OFFICER JAMES FORCILLO, NOT SERGEANT WITH TASER GUN
If you’re from Toronto, and most likely anywhere else in Ontario or Canada, then you’re not just familiar with the names– Sammy Yatim and James Forcillo, but you have probably seen the videos of the shooting incident which occurred over two years ago on a TTC streetcar between Toronto Police and Sammy Yatim. Yatim was hit with eight out of nine shots fired by 30-year-old Toronto Police Service officer James Forcillo, and subsequently tasered by a Toronto Police sergeant.
Forcillo is currently standing trial on the charges of second-degree murder and attempted murder, in connection with the streetcar shooting; however, many people voiced concerns regarding the use of the taser after Yatim was shot multiple times, as well as the decision by the Special Investigations Unit (SIU) to not lay charges against the police sergeant who discharged the taser gun against Yatim. SIU spokesperson advised that only one person caused the death of Yatim, and thus only one person is charged.
As much as I strongly disapprove of the use of tasers, particularly when used against a person laying on the floor, suffering from multiple gun-shot wounds, there does appear to be a logical explanation as to why the officer who used the taser was not charged. Legal principles and reasoning in the Canadian criminal law, which have been applied by the Supreme Court of Canada (SCC) in a large number of cases, in fact support the SIU’s decision to only charge one officer.
The criminal standard of factual causation, is that the “accused’s conduct be at least a contributing cause of the result, outside the de minimis range”. The relevant test that should be considered, as suggested by the SCC is referred to as the ‘but for’ test. This test examines how the victim’s death is caused given the facts of a case. But for the actions of officer Forcillo who fired nine shots at Yatim, the young man would still be alive. What about the taser? It’s certainly possible that the officer who deployed the taser could have played a role in causing the death of Yatim as well.
The Courts have determined that based on the facts of a case, the trier of fact (either judge or jury) must decide whether an intervening act by another person would sever the causal connection between the accused’s act and victim’s death, which would ultimately eliminate the accused’s legal responsibility. If the intervening act is a direct response or is directly linked to the accused’s actions and does not overwhelm the original actions, then the accused cannot be said to be innocent of the death.
In Yatim’s case, the request for assistance from an officer with a taser was made prior to the shooting. Seeing that only sergeants are the only officers permitted to carry tasers, the actions of the sergeant were both a response and directly linked to Forcillo’s actions. While the use of the taser in this case was extremely questionable to the public, it would not be considered sufficient to overwhelm the actions of officer Forcillo with respect to shooting the victim nine times. According to the factual causation analysis, officer Forcillo would remain responsible for the death of Yatim, despite the sergeant’s involvement.
Hypothetically, the prosecution of the Toronto Police sergeant would not be successful for the reasons mentioned above; however, an argument can be made that the sergeant could or should have been charged with assault with a weapon. The Criminal Code definition of assault with a weapon, according to sections 265-266, includes the use of a weapon during the intentional application of force against a complainant, without their consent.
A spokesperson for Toronto EMS confirmed that Yatim was still alive at the scene of the incident and was still breathing when he was lifted off the floor of the streetcar by paramedics. Only after being transported to a hospital in life-threatening condition was Yatim pronounced dead.
No further explanation was provided by SIU as to why the officer was not criminally charged with respect to his involvement in this case.
YATIM VS FORCILLO – GUN VS KNIFE
Incidents such as this, involving police use of force typically sparks outrage in communities across the world and tarnishes the relationship between communities and the police. While it’s easy to watch videos and form an opinion that officer Forcillo was not justified in shooting the victim, or that 9 shots was excessive, it is crucial to acknowledge that the actions of one officer in our community should not be indicative of the entire force. Above all else, these police officers do not have an easy job.
Police officers serve a crucial, yet difficult role in our communities. While it is easier to judge the actions of an officer after the fact, it is much more difficult to understand the highly dynamic nature of the job and the quick decision making required to be made by officers in dangerous situations. Police officers endure a lot on a day-to-day; a lot more than ordinary members of the public will ever be able to understand.
The Sammy Yatim case was not the first time a Toronto Police officer and his or her service weapon went toe-to-toe with a Toronto civilian wielding a knife. Many of these incidents go unreported. We rarely hear about the officer who did not open fire and suffered injuries. That being said, the vast majority of the public are quick to argue the service weapon-knife showdown is outrageously unfair and that the police always have the upper hand. Most assume an officer and his or her firearm are much more lethal than the sharp edges of a knife. I respectfully disagree. I suspect many police officers do too.
In a confrontation where an officer and an assailant are in fairly close proximity to one another, there are significant safety concerns for the officer. Even if a person carrying a knife is shot several times, the officer may still be at risk. How so you may ask?
Contrary to media depiction and what most people believe, gun-shot victims do not always fall and roll over after being shot. In fact, one may not even feel the bullets enter his or her body. Even after being shot, the knife wielding assailant may potentially succeed in using his or her weapon against an officer.
I raise this issue to shed light on a perspective that has till now been overlooked. Throughout the course of this story, the Crown Attorney in this case, as well as the media have painted a picture of a reckless officer who lost his temper due to inappropriate name-calling and consequently fired nine shots out of anger. Certainly a possibility.
Another possibility may be that Focillo made a human error in judgement in such an intense moment. Perhaps, he feared for his safety and the safety of his fellow officers, and thought he saw Yatim move forward and attempt to reach for his knife one last time.
Regardless of what version of events the media portrays and the public believes, only the 12 men and women of the jury will determine the outcome of the Forcillo case.