Sammy Yatim died, so how could James Forcillo be guilty of attempted murder?

Toronto police officer Constable James Forcillo leaves the court after being let out on bail in Toronto, August 20, 2013.
Toronto police officer Constable James Forcillo leaves the court after being let out on bail in Toronto, August 20, 2013. REUTERS/Mark Blinch

This was the story that shocked Toronto in July of 2013:  Sammy Yatim, the 18-year old man who wielded a knife against passengers on a Toronto streetcar was shot nine times by Toronto police constable James Forcillo.

Forcillo’s trial for shooting Yatim started last year. After six days of deliberations, the jury finally reached a verdict yesterday. Everybody held their breaths. What did the jury decide? Would Forcillo be guilty of second degree murder?

The jury decided Forcillo was not guilty of second-degree murder, but rather attempted murder.

How could this be? After all, Sammy Yatim died, so how could Forcillo even be charged with attempted murder?

Section 660 of the Criminal Code of Canada allows for charges to be laid in such situations, where the accused can’t be charged with an offence that hasn’t been proven but could be charged with the attempt to commit the offence.

Yatim was significantly injured by the first three shots, as per medical evidence, he would have died even if Forcillo didn’t continue shooting. Consequently, the Crown decided to lay a charge of attempted murder for the last six shots.

The last six bullets couldn’t have killed Yatim, as he would have died regardless, so the elements of second-degree murder could not be established. However, as per the Criminal Code, the charge of attempted murder could be made.

The Crown, lawyers who represent the government in criminal proceedings, took a chance on this risky legal strategy. In August of 2013, a few weeks after the shooting, Forcillo was charged with second-degree murder. The Crown only lay charges of attempted murder a year after the second-degree murder charge.

They later explained that the reason they decided to lay the attempted murder charge was because the first three bullets fired by Forcillo would relate to the second-degree murder charge. However, the Crown then decided to separate the first three bullets fired from the last six, which were fired after a five and a half second break during the shooting.

Why do this? This strategy would allow for an “out” for the jury – if they didn’t want to convict him of the second-degree murder charge, they could convict him for the lesser charge of attempted murder.

When the jury came back with the verdict that Forcillo was not guilty of second degree murder but was guilty of attempted murder, that was the jury basically saying that he was justified in firing the first three shots, but not the last six. Likely this is what the Crown had in mind if they couldn’t get a conviction for second-degree murder charges.

Still, this verdict is unprecedented and has not only left lawyers and non-lawyers alike scratching their heads. Toronto-based criminal defence lawyer Joseph Neuberger told CBC News: “I was very confused by this verdict, because this whole interaction between Forcillo and Yatim is approximately 50 seconds, and the second volley of shots comes within seconds of the first volley of shots...”

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