The James Forcillo Trial Verdict Explained

Today’s verdict on the Forcillo case has undoubtedly raised several questions that the media may not be able to answer clearly.

Here’s my perspective:

1. The jury had a reasonable doubt about whether the force used by the officer in firing the first three shots, some or all of which killed Sammy Yatim, was unlawful.  Police officers are authorized under s.25 of the Criminal Code to use force that’s intended to cause death or grievous bodily harm to a person to be arrested subject to several limitations. The one that’s most relevant here is if the officer believes on reasonable grounds that it’s necessary to protect the officer or others. This is a specific defence, so the Crown would have to negative it to get a conviction on murder or manslaughter;
2. Self-defence was also raised on the trial but I don’t personally believe it was as strong a position as the “justified force” referred to above;
3. The conviction for attempted murder was based on the additional 6 shots the officer fired at Mr. Yatim after he was on the ground.  Mr. Yatim may well still have been alive at the time. The jury must’ve found that the officer intended to kill him at the time and that there were no reasonable grounds to justify the force he used.  The fact that the other shots actually did kill him didn’t prevent this finding as it was based on the act of firing the shots, the intent to kill and the lack of a valid defence;
4. Peter Brauti, the defence counsel, has indicated he’ll seek a stay of proceedings on the basis that the officer was only doing what he was trained to do and it would be an abuse of process to permit a conviction to be registered. This is a novel argument, particularly as a stay of proceedings is reserved only for the clearest of cases, but the judge will have to rule on it in the future;
5. Assuming the judge rejects the application for a stay, there’s a minimum jail sentence of 4 years for attempt murder when a firearm is used and a maximum sentence of life imprisonment. The judge won’t have the discretion to impose anything less, unless the defence could persuade him that the section providing the minimum is unconstitutional.  Several years ago, the Supreme Court of Canada ruled that a judge does not have the option of granting someone a “constitutional exemption” and thereby give him or her a sentence that’s less than the minimum;
6. The fact that the jury was out for several days indicates that there were some who took a different view than others until they arrived at something they could all agree to. We’ll have no way of knowing how many voted which way and who changed their views before the final decision as their deliberations have to be kept secret;
7. The defence have indicated they’re considering appealing the verdict. They’d have to satisfy an appellate court that there was a significant error in law, whether in ruling evidence admissible or inadmissible, in the trial judge’s instruction to the jury  or on some other basis. The fact that the jury acquitted the officer on the most serious charge could be taken to indicate, at least in terms of any defence argument, that they had a good enough basis on what was introduced at trial, to understand the issues and decide the case fairly.  The Crown also has the right to appeal against the acquittal.

While there’s a great deal more to think about as a result of this case as, for example, what kind of police conduct COULD result in a conviction for murder or manslaughter, what training should they get, how should a jury ever evaluate the officer’s belief in what he needed to do as distinct from what was actually and reasonably necessary and much more but that might be the subject for a future post.

If you have any questions, please email contact@jeffmanishen.com.

A Closer Look at the Marco Muzzo Trial

A great deal of public attention has recently been given to the case of Marco Muzzo, currently before the court  in Newmarket on charges of criminal negligence causing 4 deaths.  Media reports have indicated that he had failed to stop for a red light and had a blood-alcohol level above the legal limit.

Notwithstanding that he was arrested several months ago, he never sought to be released on bail. Rather, his counsel Brian Greenspan has revealed that he will be pleading guilty to certain charges in February and there will not  be a joint submission with the Crown on what the sentence should be.

To better understand what has gone on and what may be anticipated, here are some factors to be aware of:

1. When the Crown has a very strong case and a jail sentence is a certainty on conviction, it may well be worthwhile to work on resolving it at the earliest possible time without seeking to obtain the release of the accused on bail. When the case has as intense a degree of public scrutiny as this one, that strategy may be even more worthwhile.  While the accused might want some time to arrange his personal affairs if released, his return to the community might engender very real public hostility which might, in turn, colour the later proceedings even more dramatically against him than the facts of the offence will do on their own;
2. From a negotiating standpoint, when it could be said that an accused is inextricably caught, the Crown doesn’t have to offer much to encourage the accused to plead guilty and the defence has essentially no bargaining room.  The Crown can decide which charges to proceed on (in this case, there may be some duplication as, for example, charges of impaired causing death in addition to the criminal negligence charges) and can determine what position would be appropriate to take on sentencing without having to concede much, if anything, to the defence. The defence may be left in the position of emphasizing the fact that the accused has pled guilty at the earliest opportunity, has no record, has saved the family the stress of contested and protracted court proceedings and, accordingly, should get a sentence that would fall within the lower end of the range for such offences;
3. That latter aspect has been considered very recently by the Supreme Court of Canada in the case of R. v. Lacasse.  A young man in Quebec, with no criminal record, entered pleas of guilty to two counts of impaired operation of a motor vehicle causing death.  While intoxicated, he drove at a high rate of speed and lost control of his vehicle, causing the deaths of his two passengers.  The trial judge commented on the problems in the local community with drinking drivers and decided to impose a 6 ½ year sentence plus a lengthy driving prohibition.

The  sentence was appealed to the Quebec Court of Appeal, who reduced it to 4 years.  The Court commented that the trial judge hadn’t given enough weight to the young man’s lack of record and guilty plea.  Significantly, they said that the sentence was outside of the range normally imposed on other offenders in similar cases and, therefore, was disproportionate to the accused’s degree of culpability.

Their ruling was reversed by a majority of the Supreme Court of Canada on December 17^th, 2015.  In essence, the majority determined that sentencing is an individualized process with a very wide discretion being given to the trial judge who hears the evidence and knows the local conditions.  While sentencing ranges may be developed through a series of decisions of different courts, the specific sentence that’s considered to be proportionate,  in the sense that it is reflective of the degree of moral culpability of the particular offender for his or her conduct giving rise to the offence, is a matter generally best determined by the trial judge.  It may, in the appropriate circumstances, exceed the range of sentence without falling into reversible error.

Two of the Supreme Court judges dissented. They felt that the trial judge hadn’t given enough weight to the mitigating factors such as lack of record and youth of the offender but chose to focus heavily on the prevalence of the offence of drinking and driving in the community. He did so without evidence and without letting the defence know how much weight he was going to give to that single factor. The concept of proportionality, in the view of the dissenting judges, involved consideration of what sentences had been given to others in similar situations to that before the court on this occasion.  On that basis, they felt that the decision of the Quebec Court of Appeal was right, as appellate intervention was warranted.

As a side note, the driving prohibition imposed by the trial judge was reduced to give the accused credit for the time he’d spent on bail when he couldn’t drive.

Without predicting the sentence that Mr. Muzzo will get, I’m sure that the Crown, defence and judge will get considerable guidance from the decision in Lacasse. It certainly couldn’t have come in a more timely fashion.

If you have any questions, please email contact@jeffmanishen.com.