police misconduct

Supreme Court Declines Bid for Appeal by Toronto Cop

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada, the Supreme Court of Canada, has denied the request for leave to appeal made by Toronto Police Constable James Forcillo (“Forcillo”) of his 2016 conviction of attempted murder and six-year jail sentence.

We have previously blogged about both the trial court decision, in which the jury found Forcillo guilty of attempted murder in the death of 18-year-old Sammy Yatim (“Yatim”), and the Ontario appeal court decision, which upheld the trial court decision.

WHAT HAPPENED?

The shooting death of Yatim on July 27, 2013 was recorded on video by a bystander showing Forcillo shooting Yatim in two separate intervals. Forcillo shot Yatim as he stood on the steps of an empty Dundas streetcar, and then resumed firing 5.5 seconds later as Yatim lay on the ground, apparently dying.

The police were called upon after Yatim exposed himself and handled a small knife on a streetcar, prompting both passengers and the driver to flee the streetcar.

Although a jury acquitted Forcillo of second-degree murder for firing the initial fatal shots, he was held guilty of attempted murder for pausing for 5.5 seconds and deciding to fire at Yatim six more times.

Forcillo was sentenced to six years in jail for firing the second set of shots which were found to be “unreasonable, unnecessary and excessive” and an “egregious breach of trust”. Forcillo proceeded to appeal his conviction and sentence, and was granted bail while awaiting his appeal.

In November, 2017, while Forcillo awaited the appeal of his conviction he was placed on house arrest bail and was living with his estranged wife, who was also his surety. During this time, SIU investigators went to his fiancee’s home to assess the apartment’s suitability. Forcillo answered the door and tried to explain that his presence at the home was only temporary. However, a lease agreement of the rental unit was found to be signed by Forcillo and his fiancée, and his name was found on the intercom directory in the apartment lobby. Forcillo was charged with failing to comply with his recognizance.

Forcillo’s bail was revoked and he was sent to prison to await the appeal of his conviction and sentence. During this time, new charges were laid against him alleging that he committed perjury by making a “false statement under oath in an affidavit” and obstructing justice by attempting to cause a judge of the Court of Appeal to act on an affidavit made under oath that contained omissions, misleading, and or false statement.

The charges for obstruction and breach of bail conditions were withdrawn after Forcillo pleaded guilty to perjury. Forcillo was sentenced by Justice Sandra Bacchus to six months in prison, on top of his existing 6 year jail term.

In April, 2018, Forcillo’s case was heard before the highest court in Ontario where his lawyers argued, in part, that the shooting should not have been divided into two separate charges as it was one continuous event. The Ontario Court of Appeal found that there were differences between the two volleys of shots by Forcillo, and therefore upheld Forcillo’s conviction and sentence.

Forcillo applied for leave to appeal to the Supreme Court of Canada. This was Forcillo’s last available remedy to overturn his conviction and jail sentence. The Supreme Court of Canada only hears approximately 11% of all cases that submit applications to be heard by the highest level of court in Canada. The court does not provide any reasons as to why cases are rejected at this level.

WHAT HAPPENS NEXT?

Forcillo officially resigned from Toronto Police Service on September 4, 2018.  He becomes eligible for day parole in July 2019 and eligible for full parole as of January 2020.

Forcillo’s criminal case has now ended with the Supreme Court’s decision not to hear his appeal, however, his legal battles are not yet over. There is still a coroner’s inquest to be held, a date for which has not yet been set. Also, Yatim’s parents have filed separate civil lawsuits against Forcillo.

Sergeant Dusan Pravica (“Pravica”), who arrived on the scene seconds after Yatim was shot, is also facing one count of misconduct under Ontario’s Police Services Act and awaits a hearing before the Toronto Police Disciplinary Tribunal. The Office of the Independent Police Review Director completed an investigation following Yatim’s death (and a complaint filed by Yatim’s father) and concluded that Pravica used unnecessary force, failed to assess the totality of the circumstances, and acted in haste when he Tasered Yatim as he lay on the ground. Pravica gave evidence at Forcillo’s trial that Yatim was still clutching a knife as he approached him and he felt that Yatim still posed a threat.

We will continue to follow Pravica’s case and await the results of the hearing before the Toronto Police Disciplinary Tribunal, and will report any developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario to Regulate Police Carding Practice

Written on Behalf of Affleck & Barrison LLP

Late last month, following significant public outcry over the controversial practice of carding, the Ontario Liberal government announced that it would be introducing new regulations banning the arbitrary and random stopping and questioning of citizens by the end of the fall. Opponents of the practice expressed concern that the tactic disproportionally targets ethnic minorities, particularly young black men. The campaign for change was launched by deputy leader of the provincial NDP, Jagmeet Singh, a lawyer representing the riding of Bramalea-Gore-Malton, who knows his rights and had himself been carded over 10 times by police.

According to Community Safety Minister Yasir Naqvi, the new regulations would establish clear and consistent rules to protect civil liberties during voluntary interactions between police and the public. Naqvi said police will no longer be able to stop people based on how they looked or in which neighbourhood they live. Exemptions would be made in the rules to cover routine traffic stops, situations where someone is being arrested or detained or where a police officer is working undercover. Ontario police would only be able to stop, question and document members of the public if they have a valid policing purpose, defined as “detecting or preventing illegal activities.” Police would have to inform an individual of the reason for the stop and that the individual has the right to walk away. The province is allowing 45 days for public consultation, which will then be reviewed and considered. The province will then amend the regulations and allow time for police boards to make the necessary changes to policy and procedures. Once passed, the regulations would ban random and arbitrary stops as of March 1, 2016. By July 2016, the regulations around voluntary interactions, such as the need to inform individuals that they can walk away, would come into effect.

Police forces across the province, have been resistant to the call for change thus far. In response to the province’s announcement of the new regulations, the police forces have stated that although they will abide the regulations once they are put into place, they are currently working to halt some aspects of the proposed restrictions, claiming that they will prevent officers from interacting with the public. Although police forces have claimed that carding is a useful practice that helps them fight crime, they have not been able to provide any meaningful statistics that show that carding is a valid use of resources that actually prevents crime.

To discuss your criminal charges with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.cbc.ca/news/canada/toronto/carding-regulations-ontario-1.3292277

http://www.thestar.com/news/crime/2015/10/28/province-to-unveil-limits-on-carding.html

Police Misconduct: Who Watches the Watchmen?

Written on Behalf of Affleck & Barrison LLP

In The Simpsons episode, “Homer the Vigilante”, Lisa asks Homer, “If you’re the police, who will police the police?” Homer replies, “I don’t know. Coast guard?” Police officer misconduct has received considerable media attention of late. Another instance of police misconduct was covered in an earlier post on this blog.

In September of this year, the Toronto Star published a four-part series covering an investigation it had conducted into officer misconduct in the Ontario Provincial Police and the police services in the Greater Toronto Area – Toronto, Peel, York, Halton and Durham. The investigation found that police officers have been using their positions and the powers that accompany them for personal gain. In the past 5 years, according to police files, almost 350 officers in the Greater Toronto Area have been disciplined for ‘serious’ misconduct. Over 60 officers from the OPP and from the GTA police forces have also been disciplined for drinking and driving since 2010. However, although OPP Commissioner, Vince Hawkes, told the Star that individuals caught for an impaired driving offence should no longer be police officers, the Star uncovered only one case in which an officer was made to resign. In addition, Toronto police handed out the most lenient penalties to officers caught drinking and driving, despite memos and bulletins from police chiefs strongly condemning the practice.

It is concerning that many of the officers disciplined with conduct referred to as “serious” by their own services are still working as cops. While having a previous criminal record almost guarantees that a person will never be hired as a police officer, the unfortunate reality is that once someone is an officer, it is difficult to get rid of them. Many officers who are convicted of criminal offences receive a slap on the wrist and are allowed to continue working. Prosecutors and even police chiefs feel that officers are often treated too lightly.  In addition, police discipline cases rarely get reported in public. In numerous written decisions, the police officer presiding over the tribunal noted that media coverage of the officer’s misconduct would undermine public trust in the police and would cause significant damage to the reputation of the police force. But the revelation of the lenient penalties officers receive for their misconduct is troubling and equally serves to undermine public trust in the ability of the police tribunals to police their own.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.thestar.com/news/canada/2015/09/18/disciplined-opp-member-still-a-high-ranking-cop.html

http://www.thestar.com/news/canada/2015/09/19/hundreds-of-officers-in-the-greater-toronto-area-disciplined-for-serious-misconduct-in-past-five-years.html

http://www.thestar.com/news/canada/2015/09/20/to-swerve-and-protect.html

http://www.thestar.com/news/canada/2015/09/21/police-officers-caught-using-their-position-for-personal-gain-in-recent-years.html

Toronto Police Collude to Frame Man for Heroin Possession

Written on Behalf of Affleck & Barrison LLP

old car in alley

The abuse of police powers has received significant media attention in recent months particularly with the accusations of disproportionately targeting visible minorities during street ‘carding’ checks. In addition, an investigation conducted by the Toronto Star found that police who give false testimony are rarely disciplined.

In R v Tran, 2015 ONSC 5607, a recent decision of the Ontario Superior Court, Justice Edward Morgan stayed drug charges against the defendant and threw out the seized drugs as evidence as being planted in the defendant’s car by the Toronto Police.

On the afternoon of January 13, 2014, Nguyen Son Tran was pulled over for allegedly running a red light. He was arrested and charged with heroin possession when the officer who pulled him over spotted white powder on his dash. His car was searched, 11 grams of heroin was discovered in the vehicle and he was then re-arrested for possession for the purpose of trafficking. The Court heard very different accounts of the events leading to Mr. Tran’s arrest from the arresting officers and Mr. Tran himself.

The case turned on the admissibility of the seized drugs, and whether the police officers who searched Mr. Tran’s vehicle were acting within their lawful authority.  As the Supreme Court of Canada indicated in R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para 16, a “search is only justifiable if the purpose of the search is related to the purpose of the arrest.” If it is not established that the police saw heroin on the console of the car, the evidence seized in the search would have to be excluded.

The trial judge found that the police had colluded to place the loose heroin on the dash after their search to cover their tracks for conducting an illegal search of Mr. Tran’s vehicle.  Justice Morgan described the conduct of the officers as egregious and wrongful. He found the officers had no real explanation for all the wrong information they shared and had colluded to come up with an untrue version of events.

It is uncertain yet whether the officers in this case will be disciplined or face charges. Police officers must be held accountable for their betrayals of trust, because when they act like this public confidence in police inevitably erodes.

For more information and to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

To read the full decision in R v Tran, 2015 ONSC 5607  click here.