What James Forcillo's sentencing means for the future of policing

By Chantal Braganza - Published on Jul 28, 2016
Toronto police Const. James Forcillo was sentenced today for the 2013 attempted murder of Sammy Yatim. Nathan Denette/Canadian Press

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Earlier this year, Toronto police Const. James Forcillo was convicted of attempted murder in the 2013 shooting of Sammy Yatim in Toronto. Today, Justice Edward Then delivered a sentence of six years’ imprisonment, a relatively rare occurrence in the history of Canadian civilian deaths involving police.

We asked four experts – two lawyers, a mental health professional and a community advocate – for their thoughts on what a verdict and now sentencing might mean for the future of law enforcement behaviour regarding excessive use of force, and institutional inclination to lay charges or convict officers in the event of civilian deaths at the hands of police.

‘Hopefully officers will now know that they may face serious punishment for unjustified killings.’ — Peter Rosenthal

I hope that the verdict and sentence of Const. James Forcillo will deter other police officers from shooting people unless it is absolutely necessary to prevent serious injury or death.  Justice Edward Then emphasized the fact that officers must try verbal de-escalation when possible, and that lethal force by a police officer can only be justified if it is a last resort.

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Several different inquests into police killings have made the same points. However, those inquest recommendations have not been followed in many cases, including in the killing of Sammy Yatim. Hopefully, officers will now know that they may face serious punishment for unjustified killings, and that acknowledgment may well deter future killings.

It is very rare that police officers are charged with offences relating to causing a death, and very few of those charged get convicted. It is hard to know what the impact of this case will be on future cases.

In my view, Forcillo’s firing of the first three shots was clearly not justified and he therefore should have been convicted of murder. The firing of the second round of shots, as Yatim lay on the floor of the streetcar, was outrageous. So part of the message of this conviction might be that an officer has to do something clearly outrageous in order to be found guilty. That message would be unfortunate. But I hope that the conviction and sentence will have deterrence value nonetheless.

Given the acquittal of murder and the finding of guilt of attempted murder, it is my view that the sentence was just and the reasons for it were cogent. In particular, the judgment emphasized police responsibility to use the awesome power of their firearms in a reasonable manner.

Peter Rosenthal is professor emeritus of mathematics and adjunct professor of law at the University of Toronto and a practising lawyer who has represented family members of people shot and killed by police. Rosenthal most recently represented the family of Michael Eligon at an inquest into the death of the 29-year-old who was shot and killed by police in 2012. 

‘We’re not going to see a mea culpa moment or acknowledgment on the part of police.’ —Annamaria Enenajor

Having one case like this, where a police officer is charged and convicted and given a substantial sentence, at least in the immediate term, won’t necessarily have the tidal wave change that we hope it will have going forward. First, the case is not over until it’s appealed and the Court of Appeal upholds the sentence. I think there’s a rush immediately [on the part of defence] to get to the Court of Appeal to get bail granted. So Forcillo likely won’t see the inside of a prison for a while. The status quo hasn’t changed.

We’ve seen a judicial condemnation and a strong one, on this type of behaviour, but I don’t think this one case will be enough to bring about the systemic change and culture that has to take place in police culture that continues to be characterized by impunity and lack of transparency. We’re not going to see a mea culpa moment or acknowledgment on the part of police.

I do think we are going to see [the police] close ranks and continue to deny that this is representative of a crisis in policing, which I say it is. But I don’t think it’ll bring about the systemic change in culture that activists and advocates would have hoped for, because it’s not coming from the inside, but the outside. And it’s one “isolated” case, in a landscape of jurisprudence that overwhelmingly holds police to a lower standard of responsibility than civilians because of the nature of their work.

The largest element that pushed this case over the edge from being another case of a police officer getting off into the territory of accountability is the cellphone video [of the shooting]. It was powerful evidence at trial, and it was called powerful by the judge in his reasoning. What I think might happen is we may see a rise in behaviour from police that tries to immunize themselves from being captured on camera, because they recognize the power of this raw, unfiltered footage of wrongdoing.

People need to educate themselves. They need to know that if [police are] in a public place and conducting public duty, that it’s completely in their right to tape them. Often people will not question or second-guess an officer asking them to stop doing this.

Annamaria Enenajor is a criminal defence and constitutional law lawyer at Ruby & Shiller Barristers in Toronto.

‘Are we as a society capable of holding police officers accountable when they do wrong?'—Idil Burale

I think the sentencing of Forcillo is huge in the sense that it is symbolic. On the one hand, Canada managed to do something that American cities haven’t been able to do so far: convict and sentence a police officer for the killing of a civilian. Recently the Freddy Grey trial had come to a stop, and in that case you had a situation where the verdict was homicide, but no one was responsible for it.

Accountability has been one of the biggest themes in the discussion we’ve been having around police and community engagement. On one extreme end of it there’s Forcillo, and then on the other end there’s what we’ve been talking about with carding, or the use of force with people with mental illness. Are we as a society capable of holding police officers accountable when they do wrong? For a long time this question has been approached with either cynicism or confusion about how the system works.

So this is groundbreaking in that sense. [The defence] is appealing, so this could go on for another few years. I’m also wondering what this would mean for the recent case in Ottawa [in which Abdirahman Abdi died after a police encounter], and other cases that may come about in the future. The impact I hope this has is one of real culture change. I wonder how, or if, this can translate into specific, tangible interventions that can yield culture change within policing

Oftentimes when we talk about these cases we talk about police officers not being adequately trained — but it needs to extend beyond that. Who is interested in becoming a police officer, and what role do they think a police officer has in society?

What was most poignant for me from the judge’s speech was the statement that barking orders at someone is not the same as communicating with someone. You see the same with carding: someone doesn’t know why they’ve been stopped or questioned; they’re just following orders. How can police officers themselves understand that they’re guardians of public safety — so that they’re expressing why they’re doing what they’re doing, instead of just doing it from a sense of authority.

Idil Burale is a community advocate with a particular expertise in police-community relations. She’s been an adviser to Toronto police’s PACER project, the Toronto Police Board’s community safety task force, and has co-created an award-winning community policing pilot in Etobicoke North.

‘No one, including the officer using it, is better off when excessive force is used.’ — Jennifer Chambers

I read the judgment and a couple of things struck me. One is that the judge said that police are not only responsible, but should be held to a high standard because of the trust and high power granted to them by our society.

I expect that the police association will respond by saying that everyone will be at greater risk because police officers will now be afraid to use necessary force. But this case is about not using force when force is not necessary. It should be about promoting better judgment about when force isn’t needed. It was a case of shooting [Sammy] Yatim when there was no risk, and he was lying on the ground dead.

Another thing that struck me is that the other officers present did not fire — but at the same time no one prevented Forcillo from firing. I know that to a tiny extent this is addressed in training, but it needs to be a bigger part of it: how to prevent a fellow officer from using force unnecessarily. If your colleague is using unnecessary force, what to do in those situations. I know officers need to feel supported by one another but no one, including the officer using it, is better off when excessive force is used.

I think the verdict and sentencing will have some effect on police behaviour. But the behaviour in these situations tends to be split-second decisions. So for it to be a good effect, it needs to be done repetitively. [In training,] there should be more emphasis on the level of threat being imminent and how to deal with a fellow officer who you think might using excessive force.

The other issue is that training isn’t the only thing that needs to happen. There’s supervision over how other people are behaving on the job. I have questions about how Forcillo was being supervised. What kind of performance reviews was he getting? Was he told before that he needs other means of responding than drawing his gun?

Jennifer Chambers is the executive director of the Centre for Addiction and Mental Health’s Empowerment Council, an independent voice for clients of mental health and addictions services.

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