One of the most combative cross-examinations during the murder trial of Toronto police Constable James Forcillo took place not only outside the presence of the jury, but in a virtually empty courtroom.
Only a handful of people were watching as the Crown questioned criminologist Rick Parent last month about his qualifications and conclusions regarding the shooting death of Sammy Yatim. Yet his testimony was seen as critical to the defense's case. Const. Forcillo's legal team wanted to introduce evidence that the fatal shooting was actually suicide-by-cop – a term that has entered the popular lexicon, but which remains a controversial theory.
Const. Forcillo is facing charges of second-degree murder and attempted murder in the July, 2013, death of Mr. Yatim. The officer fired his weapon nine times, hitting the young man with eight bullets, after he refused to drop a small switchblade. Mr. Yatim was near the top step of a streetcar and the officer was outside the vehicle about four metres away when he fired two volleys of shots. The entire incident was captured on smartphone video by onlookers and security cameras inside the streetcar.
Lead defence lawyer Peter Brauti argued that Mr. Yatim, who had taken ecstasy that night, was an ongoing threat to police and the public. Crown attorney Milan Rupic countered that there were numerous alternatives to the use of lethal force. He characterized Constable Forcillo as a "hothead" and a "bully" who lost his temper because the teenager did not obey commands and mocked the police.
The case is now in the hands of the jury, which began deliberations Wednesday morning. As they mull over months of evidence, the jurors do not know there was a skirmish over whether the suicide-by-cop theory was legally admissible. Ontario Superior Court Justice Edward Then ruled that it was not admissible, and that also resulted in an unsuccessful mistrial application by Mr. Brauti.
Mr. Parent, a former Vancouver-area police officer, has published extensively on the subject of suicide-by-cop and is on the criminology faculty at Simon Fraser University. He examined text messages and Internet searches from Mr. Yatim's phone in the weeks before the incident and observed video of the teen's actions on the streetcar and concluded it was "more likely than not" the 18-year-old wanted police to end his life.
The text messages revealed "stressors" including being kicked out of his father's home, a lack of money and few job prospects, stated Mr. Parent. "Taking one's own life is difficult, but if you are involved in a police shooting there is some controversy. Your name is not forgotten," said Mr. Parent. He estimated that about 35 per cent of fatal shootings by police are "precipitated" by the victim.
The term suicide-by-cop was first coined in the early 1980s by a former California officer who was studying for a PhD in Psychology. Nearly all of the research on the topic since that time has links to law enforcement. Critics of this concept and others such as "excited delirium" – in which people in crisis are purported to be capable of superhuman strength – say that these terms focus blame on the victim instead of examining whether lethal force was necessary. (In the inquiry into the taser death of Robert Dziekanski at the Vancouver airport in 2007, Justice Thomas Braidwood concluded that excited delirium is not a legitimate medical condition and should not be part of use-of-force training for police).
Mr. Parent was "working backwards" to justify a preordained conclusion, said Crown attorney Ian Bulmer, who cross-examined the criminologist.
"You are not qualified to look at text messages and determine whether those would impart on someone a sense of hopelessness," Mr. Bulmer said.
"You are able to look at certain variables and determine whether they fit into a category," Mr. Parent replied.
The Crown suggested to the witness several times he was trying to conduct a "psychological autopsy" for which he was not qualified.
Each time, Mr. Parent insisted that the variables in the death of Mr. Yatim were consistent "with the body of science that exists within suicidology and victimology," as well as police shootings of civilians.
The conduct of Mr. Yatim on the streetcar, which included exposing himself and then causing a stampede of passengers off the vehicle after brandishing his switchblade, also fit the suicide-by-cop template, Parent said. "The three main variables are present – risk-taking, aggressiveness, intentiality," he said.
None of the passengers were physically injured because Mr. Yatim did not want anyone else to die. As he waited for police to arrive, "it was almost the calm before the storm," Mr. Parent said, in one of a number of phrases echoed by Mr. Brauti in his closing address.
A pathologist determined that one of the first three shots caused the death of Mr. Yatim and severed his spine. That he was still able to hold on to the switchblade was an indicator of his determination to be killed by police, the witness said. "This occurs in other cases I have examined. Individuals are technically dead, but because of their mental mindset, their goal-oriented mindset, they are able to carry on," he said.
Two days after the cross-examination, Judge Then ruled that Mr. Parent did not meet the legal standard to testify as an expert and he was not called as a witness. As well, the defence would not be allowed to argue the death of Mr. Yatim was suicide-by-cop.
"The state of mind of the deceased … is irrelevant to explain what the deceased did, because what he did is manifest from these videotapes," the judge said. "The state of mind was unknown to everyone, especially to the accused. So he cannot be convicted or acquitted on the basis of the state of mind of [Mr. Yatim]," the judge explained, relying on past Supreme Court decisions.
The next day, Mr. Brauti asked for a mistrial. "I have a hand tied behind my back in a case where it is a fight to the finish," the defence lawyer said. According to Mr. Brauti, the Crown was able to repeatedly portray Mr. Yatim as a "drug-addled teenager" who was not a risk, and now the defence could not explain why he was dangerous.
Judge Then pointed out that the actions of Mr. Yatim on the streetcar were highlighted by the defence with every witness. "It is not as if Mr. Yatim did not take his lumps. It is not as if he was presented as some choir boy," the judge said.
The suicide-by-cop issue arose again in somewhat cryptic fashion during the closing argument by Mr. Brauti. He told the jury the defence had evidence to back up its theory as to why Mr. Yatim behaved the way he did, but it was deemed irrelevant by the court.
After closing arguments had concluded and the jury was excused, the Crown objected to these comments and said they were improper.
While the term was never stated to the jury during the trial, Mr. Brauti explained that the defence was developing a theme of suicide-by-cop so he had to explain why more evidence was not presented in this area. "I felt obligated to defend it, so that Officer Forcillo's defence did not look like a sham," he said.
"Is it your obligation to tell them what occurred in their absence?" Judge Then asked. In his final instructions earlier this week, the judge told the jury that it was not to speculate about what evidence might have been put forward, or come up with theories not based on the evidence at the trial.
Special to the Globe and Mail