Friday, 27 May 2016

Forcillo Verdict

I've wrote before about the verdict in the case of Officer James Forcillo killing Sammy Yatim on a streetcar in Toronto in 2013. It was a strange-seeming-but-completely-reasonable verdict where Forcillo was acquitted for the three bullets that killed Yatim, but found guilty of attempted murder for the following six shots.

I've been following the hearing only lightly and the decision won't be made until the end of July. I haven't been very impressed with the defense team's arguments. First of all, they seem to try to skirt around the fact that Forcillo was convicted of attempted murder. That's a very serious crime, and an element of the crime is having an intent to kill. For the defense team to act as though Forcillo didn't have an intent to kill Yatim is to pretend he wasn't found guilty.

If you are going to stand up in court at your sentencing hearing and say, "I understand the crime I was convicted of, I understand that I will be sentenced for that crime and that is the law, but I did not actually commit that crime," then that's one thing, but it feels a lot more like Forcillo's lawyers are trying to pull a fast one on the judge.

The average sentence for attempted murder is around 13 years, the mandatory minimum when committed with a restricted firearm is 5 years. Forcillo's team wants 2 years of house arrest. They argue that the mandatory minimum is unconstitutional. I think mandatory minimums are terrible, but I don't see how they are unconstitutional. Is the maximum sentence unconstitutional as well? I'll be interested to see this argument further fleshed out as it moves through higher courts if it comes to that.

But I think the defense ask for 2 years of house arrest is extreme. Sentences with no custody for attempted murder are rare according to Statistics Canada, and even if a judge agrees with the defense team that the Federal government had no right to set a five year minimum for using a gun, surely we'd have to agree that in a society where such a law was passed we ought to count using a gun as an aggravating factor.

Probably the worst part of the defense argument is that they really seem to want to say that Forcillo's attempted murder of Yatim didn't do any harm. No harm, no foul, right? I mean, sure, he egregiously shot someone six times but the guy was going to be dead anyway. Forcillo's lawyer even had the gall to talk about how in many attempted murder cases the victim is left severely injured and has to live with that. Yatim doesn't have to live any with injuries. You know, because he's not alive. The culpability could only be lower if Forcillo had missed, apparently.

Right around the time she was hearing that Yatim doesn't have the burden of living with quadriplegia Sammy Yatim's mother burst into tears and rush out of the court room. Perhaps she would rather her son was alive and badly injured than dead.

So while technically Forcillo's legal team is correct that shooting someone who will be dead in moments does no lasting harm, the bit where they talk like it doesn't matter that it happened is very overdone. It comes from a team that is really trying to deny responsibility; to get a second shot at the verdict with a sentencing judge. Besides which, even recognizing that less harm could have been done - i.e., he could have missed - is admitting that more than the minimum harm was done, and thus it is arguing against a non-custodial sentence for a crime where a 10 year sentence would be more normal.

In the end, prison just doesn't seem to work and I agree with Forcillo's defense team that putting him in prison won't help him reform, won't bring Yatim back, will hurt his family, and so on. That's true almost every time anyone is sent to prison though. Growing a compassion organ just when a police officer is being sentenced and then rapidly discarding it after is worse than showing no compassion at all.

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