A significant decision made quietly by the Crown this summer in the prosecution of Toronto police officer James Forcillo in the shooting death of an 18-year-old man on a streetcar last year continues to puzzle legal experts who say it is a highly unusual strategy in a murder trial.
Constable Forcillo was originally charged with second-degree murder in the July 2013 shooting death of Sammy Yatim.
After the officer was committed by a provincial court judge this summer to stand trial on the murder charge, Crown attorney Milan Rupic submitted a new indictment which includes a second count of attempted murder.
Lawyers for the Crown and defence met with an Ontario Superior Court judge for a standard judicial pretrial meeting this week – one of many court appearances likely to occur before a jury is selected some time next year.
Mr. Yatim was killed after he brandished a small knife on a downtown streetcar and ignored police commands to drop the weapon. Cellphone video of the incident shows that the teenager was initially shot three times. There is a pause of a few seconds and then six more shots are fired. About 35 seconds later, the video shows a still unnamed officer boarding the streetcar and deploying a taser against Mr. Yatim. (That officer was never charged with an offence. A spokesperson for the Special Investigation Unit declined to explain why, since the use of the taser was "part of the circumstances around the incident").
The Criminal Code permits the Crown to add additional charges "based on the facts presented at the preliminary inquiry," said Brendan Crawley, a spokesman for the Ministry of the Attorney General, who declined further comment because the matter is before the courts.
A lawsuit filed last fall by the Yatim family alleges that the teenager was struck by eight bullets fired by Constable Forcillo. None of the allegations has been proven in court.
The prosecution's theory may have changed, but not the defence, said Peter Brauti, the lawyer representing the officer. "Constable Forcillo was put in a difficult position with a difficult decision to make. He fully intends to explain that decision when the time is right – at a trial," said Mr. Brauti.
David Tanovich, a criminal law professor at the University of Windsor, explained that while it is unusual, a judge can instruct a jury to consider a charge of murder or attempted murder. In an Ottawa gang case in 2010, the Ontario Court of Appeal rejected the arguments of the Crown and found that someone charged with murder could be found guilty of attempted murder if there is doubt about the cause of death. In that case, the victim was wounded and died of a blood clot after being released from hospital and consuming cocaine.
Beyond those unusual circumstances, "it is hard to imagine a factual scenario in a murder case where attempted murder would be a viable verdict. The only way that could arise is if there is an issue with causation," said Mr. Tanovich. The legal bar for the prosecution is to prove only that the accused's conduct was a significant contributing cause, even if there are multiple causes, he said. One other possibility, according to the law professor, is that the defence will say Constable Forcillo was justified in using lethal force when he fired the first three shots and that this was the cause of death. The Crown could argue that there was no justification for the subsequent shots and that this proves attempted murder.
"If this is the Crown strategy, it appears risky," said Peter Zaduk, a Toronto criminal lawyer. "It gives the defence a fall back position," he said. The dual counts of murder and attempted murder are "difficult to comprehend," said Mr. Zaduk, who has acted for clients in nearly 40 murder cases and never previously encountered a similar set of charges.
This is not the first high-profile police prosecution for Mr. Rupic. He was the lead Crown attorney in the lengthy prosecution of members of a former Toronto police drug squad accused of corruption. John Schertzer and four other former officers received sentences of 45 days house arrest.
Mr. Rupic also prosecuted two Toronto officers charged with dangerous driving in 1998 after a high-speed chase of a stolen van that resulted in the death of a 73-year-old cyclist. The officers were acquitted at trial.