Police officers have an acronym that all sensible members of the public should ponder with concern. The term is FIDO, which stands for “F— it, drive on.”
FIDO refers to the sentiment officers feel when they determine it’s not worth it for them to get involved in a situation — that the downsides to them personally of taking action outweigh whatever good may come from their involvement.
While the tiny minority of cop-haters, and the larger group of liberal-minded people perhaps not considering the bigger picture, have been cheering the bizarre, unprecedented conviction of Toronto police officer James Forcillo for attempted murder, the rest of us should fear how the case will lower the morale of police officers across Canada and the zeal most of us would wish from them in keeping our communities safe.
If the Crown is going to go after cops who kill criminals with the level of malevolence displayed by the Ontario prosecutors — or B.C.’s Independent Investigations Office in its attempts, for instance, to charge Delta police officer Const. Jordan MacWilliams with murder for shooting a gunman — Lord help us. FIDO will become a dog that will bite our society in the butt.
Lawyers and others have been trying to wrap their heads around Forcillo’s conviction on Monday, in particular how the jury reached its unusual and controversial verdict — acquitting him of second-degree murder and manslaughter but convicting him of attempted murder for actually killing Sammy Yatim on July 27, 2013. Police had been called to the scene after the 18-year-old, high on ecstasy and with marijuana and cocaine in his system, pulled out his penis and a knife on a streetcar and refused to drop the weapon when police arrived and ordered him to. The tragedy was caught on video.
Initially, Forcillo was just charged with second-degree murder. But a year later, after the preliminary hearing, the Crown added the attempted murder charge, knowing that the 32-year-old officer had a solid defence to murder — that he was acting within the law as a police officer in shooting an armed man.
In what I would argue is an abuse of process and prosecutorial misconduct, in that they became results driven in the face of public outcry about Yatim’s death, the Crown came up with a legal strategy to hedge their bets in securing some sort of conviction.
Prosecutors argued that the two volleys of gunfire Forcillo fired at Yatim within 11 seconds — three in the first volley and six in the second — constituted two crimes, which is absurd and unfair to the officer.
The jury found that Forcillo didn’t commit a crime when he shot Yatim with the first three, fatal shots, which hit him in the heart, spine and arm. But that he used excessive force, removing his defence to the crime, when he shot Yatim five more times in the second volley. (One missed.)
This raises multiple grounds for appeal.
First, there is the issue of the Crown’s abuse of process in laying the attempted murder charge to improve their odds of “getting” the cop. As officers of the court, the Crown’s duty is to work within the law and seek the truth — not act with enmity toward the accused. Defence lawyers also will argue that the Crown can’t prosecute a cop for essentially following his training.
There are also serious issues about how Forcillo could get a fair trial since everyone in Toronto had seen the video and many had reached a conclusion on his guilt and also that the judge barred his lawyers from arguing that Yatim had mental problems and was intent on “suicide by cop” in refusing to drop the knife.
Next, there is the legal problem of how killing someone can be an attempted murder. If Yatim was dead after the first three shots — likely, as his heart had been blown apart — how could the second volley be considered an attempted murder, even if Forcillo didn’t know? If Yatim was a second or two from death and died after the second volley, then it was a murder if Forcillo used excessive force.
Finally, for the jury to convict on the second volley they had to conclude that Forcillo intended to murder Yatim — an intent the jury rejected in refusing to convict on murder with the first three shots.
Think about that. How can anyone conclude that Forcillo’s mens rea — his general intent to break the law — changed between the first and second volleys? That’s nonsense.
Forcillo said that he shot the second volley because in the terrible stress of the moment, he perceived that Yatim was still moving and presented an ongoing threat. He admitted later that after seeing the video he was shocked at how little Yatim moved after being hit by the first volley. But it is common in officer-involved shootings for cops, filled with adrenalin, to misperceive events. It’s a well-known physiological effect that effects everyone in high-stress situations.
That Forcillo made a mistake doesn’t mean he formed the intent to murder or try to murder Yatim. He was just trying to do his job.
Were mistakes made in the Yatim shooting? Absolutely. Forcillo and the other officers could have stepped back and worked to de-escalate the situation. It’s tragic that Yatim and other mentally unhinged people die when police are forced to deal with them.
But that shows that more must be done to develop new ways to deal with these people. Sending a young cop and dad to jail out of a misguided view that someone should pay for Yatim’s death isn’t justice. Hopefully, the appeal courts will agree.
gclark@postmedia.com
Gordon Clark is a columnist and the editorial pages editor.
The editorial pages editor is Gordon Clark, who can be reached at gclark@postmedia.com. Letters to the editor can be sent to provletters@theprovince.com.
