Peter Sankoff is a professor at the University of Alberta Faculty of Law.
Compromise verdicts like the one that just happened in the James Forcillo trial rarely satisfy everyone. But when jurors are presented with starkly competing narratives that do not seem to fit the facts of a criminal case, they will quite often reach a "reasonable" form of middle ground.
In the Forcillo case, before the final decision came down, most observers believed there were only two plausible verdicts: a murder conviction or an acquittal. After all, the case ultimately hinged on whether Constable Forcillo's conduct in shooting Sammy Yatim was reasonably justified in the circumstances. The evidence of Constable Forcillo's intention to kill seemed incredibly strong, leaving the verdict to turn on whether the shooting was justifiable in light of the supposed threat Mr. Yatim posed.
But to the surprise of most, jurors chose neither option, instead substituting an attempted murder conviction that required them to draw a fairly tortured set of factual conclusions. In essence, jurors selected the most difficult option available, concluding that Constable Forcillo's original shooting of Mr. Yatim – the one the Crown portrayed as completely unnecessary – was justified, but that his follow-up shooting moments later was not.
The jury may well have reached this conclusion through careful application of the law, but there remains a distinct alternative possibility: that the jury simply did not like the black-and-white choices of calling Constable Forcillo a murderer or a free man.
Jurors may well have believed his actions were unreasonable in the circumstances, but should not be equated with murder, arguably the most serious offence a person can commit. Depending on your point of view, Constable Forcillo may have acted inappropriately, unreasonably or outrageously, but it is hard to dispute the fact that he did not set out to kill anyone when he arrived at the streetcar that night. Instead, matters escalated during a very short and anxious time frame, and that there was some evidence to justify his belief his life was in danger.
Constable Forcillo's case does not resemble the traditional murder scenario, and it is not unreasonable to think that jurors may have been uncomfortable with the idea of slotting him into that description – even if they also thought his actions were inappropriate and deserving of some kind of criminal sanction.
The problem is that the Criminal Code gave the jury very few options. Second-degree murder is punishable by a minimum of life imprisonment with no possibility of parole for 10 years, and with intentional killings of this type, the only chance for acquittal is by demonstrating that the killing was reasonable given the threat posed.
But why should this be the case in situations like the one that played out on that streetcar, where the threat faced was genuine, but the response unreasonable in scope or degree? The law unhelpfully offers no middle ground in these circumstances, treating a person who responds to aggression in an unreasonable way as being just as guilty as the Paul Bernardos of the world who deliberately take life for no justifiable reason.
Why can't this be regarded as manslaughter, in much the same way as we do with people who kill after being provoked?
Without knowing what was discussed in the jury room, it is possible to conclude the jurors decided Constable Forcillo's actions in shooting Sammy Yatim were reasonable, and only became unreasonable once a second volley of shots was fired. Of course, the other possibility stands too: that jurors reached the only compromise they were all content with, deciding that a person who responds to a threatening situation in an inappropriate manner should not be called a murderer. But he should not walk away free either.