His lawyers cautioned the prospect of winning his appeal was slight, but Const. James Forcillo was “hit hard” by his legal loss Monday.
“He was devastated,” said Toronto Police Association President Mike McCormack. “Who wouldn’t be?”
Lawyer Michael Lacy went to the Toronto South Detention Centre to deliver the bad news that the Ontario Court of Appeal dismissed Forcillo’s appeal of his attempted murder conviction and six-year prison sentence in the shooting death of knife-wielding 18-year-old Sammy Yatim on the 505 streetcar on July 27, 2013.
“He was hit hard,” said McCormack.
Forcillo had asked the appeal court to substitute a not-guilty verdict or order a new trial in his case. He also appealed his six-year prison sentence, which is a year more than the mandatory minimum.
Defence lawyer Peter Brauti said “we did manage his expectations to understand going to the appellant court is always an uphill battle.”
It doesn’t make it any easier for the 35-year-old who could be sent to the federal penitentiary system soon.
Chief Justice of Ontario George Strathy, Justice David Doherty and Justice Gary Trotter, were unanimous in their decision.
One of the comments in their 78-page ruling said “apart from his previous good character and lack of criminal record, there was little else by way of mitigation, not even an expression of remorse. In all of the circumstances, the sentence of six years’ imprisonment was fit.”
Both McCormack and Brauti took exception.
“I do understand all of the legal angles, but I do think that one line is unfair,” said Brauti. “He does feel sorry and did not want to take a life. He made a decision (as part of his duty.)”
McCormack re-iterated “he has expressed how he does feel bad about what happened.”
But Forcillo could have helped himself by expressing this sentiment more publicly. He has not shown a lot of humanity in a situation in which a troubled kid died way too young.
“Forcillo is not a warm and fuzzy guy,” said one officer who knows him well. “But he’s not a bad guy. Not at all. If this had worked out with Yatim dropping the knife, he would have been commended.”
At his trial, Forcillo was acquitted of second-degree murder but found guilty of attempted murder, based — not on the first three shots fired –but on the second volley of six when Yatim was down on the ground.
By the end of that shift, proud Toronto Police member Forcillo was on his way to be an accused murderer with court documents describing him as a “lucky murderer” — a referral to a Supreme Court of Canada judgment that determined while an accused had the “moral blameworthiness” of a murderer, circumstances allowed that person to escape the mandatory sentence for the crime.
But there is nothing lucky about any of this.
“When an officer takes somebody’s life there are no winners,” said Brauti.
He, and fellow lawyers Lacy and Bryan Badali said in a statement: “This is a very difficult day for James and those who are affected by the decision. It remains our view that the appeal raised important and difficult legal questions.”
The next decision is whether to apply for leave to appeal to the Supreme Court of Canada.
“We will think about it. It is a unique case that would fit that protocol that the Supreme court would consider hearing,” said Brauti.
Before Forcillo heads to the federal pen, lawyers need to deal with his charge for allegedly breaching bail, which came about after his marriage broke down and his ex-wife and his parents pulled their surety. Forcillo was allegedly already in a new apartment with his new girlfriend (who is still in Toronto and “supportive”), just two days before the paperwork had been approved.
“If it were a regular person it may have been forgiven, but in his case, they are talking about six months,” said Brauti.
Since that’s more of a red tape issue, hopefully it gets dropped and they let this soon-to-be former police officer go into the federal system and start serving his time.
— With files from The Canadian Press
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