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Hicks: OCA decision 'right one' for police officer who shot teenager

The Ontario Court of Appeal (OCA) has made the right decision in upholding the attempted murder conviction of a police officer who shot a teenager on a streetcar, says Toronto criminal lawyer Christopher Hicks. 

“It reminds you of the old saying that difficult cases make bad law, but this doesn’t seem to be bad law,” says Hicks, a partner with Hicks Adams LLP. 

 “It was a difficult legal issue for the Court of Appeal and I think they resolved it properly. I think what they’ve done is solid and beyond reproach.” 

It was likely no coincidence that the appeal of this highly sensitive case was heard by three of the court’s most senior judges — Chief Justice George Strathy, Justice David Doherty and Justice Gary Trotter, Hicks says.

The OCA described the jury verdict as unusual, if not unique: the acquittal of the police officer of second-degree murder and his subsequent conviction of attempted murder arising from the same shooting.

“It causes some consternation among people,” Hicks tells AdvocateDaily.com.

“But when you read the way the Court of Appeal handled it and the way the matter was put to the jury at trial, then it makes sense and it’s rational,” says Hicks, who has acted for numerous defendants in murder trials and appeals.

As the knife-wielding teen stood alone in a streetcar on the night of July 27, 2013, Toronto police Const. James Forcillo shot him three times, the decision says. But 5.5 seconds later, as the teen lay on the floor of the bus, the officer fired six more shots at the 18-year-old, who was mortally wounded from the first volley. The officer testified he fired the second volley because he thought the teen was getting up and was a threat, although transit security footage shows that was not the case, it says.

The Crown charged the officer with second-degree murder for the first volley and attempted murder for the second. 

The appeal came down to a single question, the court said: was there a basis upon which a properly instructed jury could distinguish between the two volleys of shots, finding that the first was justified, but the second was not.

Forcillo’s lawyers questioned the propriety of the Crown laying a separate count of attempted murder for the second volley. “At the Crown’s urging, and over the objection of the appellant, the trial judge instructed the jury to consider the single shooting transaction as two discrete events and to determine the appellant’s culpability separately for each,” they stated in his factum. 

Forcillo’s lawyers took the position that the trial judge told the jury to treat the two volleys as separate incidents and should not have instructed them to consider the police officer’s culpability for each individually, Hicks says.

“But the Court of Appeal disagreed, saying that the jury was not instructed to ignore the first volley of shots in considering the second, and in fact took all of the circumstances leading up to the second volley into account,” he adds. 

The OCA was careful to say that the incident was properly viewed, as the trial judge had instructed the jury, as one continuous event, Hicks says. 

“They said it’s justifiable to look at the two events in the one single continuing transaction and I would say they’re also relying on the fact that it’s the same intent for murder as it is for attempted murder — it’s the intention to kill,” Hicks says. 

The OCA said there were obvious differences between the circumstances surrounding the first volley and the second, and that these could reasonably have led the jury to come to a different conclusion as to whether each was justified, either as self-defence or the lawful use of force, says its decision.

The defence argued that the trial judge should have taken the attempted murder count away from the jury or, alternatively, should have instructed them that they could consider it only if satisfied beyond a reasonable doubt that the second volley of shots constituted a “discrete transaction,” separate from the first volley. 

But the appeal judges in their ruling said there is no rule that one transaction cannot give rise to more than one charge. 

Hicks explains that the law allows the prosecution to charge murder and a secondary charge if it arises from the same facts. “And clearly this does,” he adds. The murder and attempted murder charges all stem from the same incident, albeit 5.5 seconds apart, he adds.

The officer also appealed his six-year sentence, arguing that the minimum five-years imprisonment for attempted murder with a prohibited or restricted firearm is unconstitutional when applied to a police officer acting in the line of duty. But the court rejected this argument.

The OCA also noted that, apart from his previous good character and lack of a criminal record, there was little else to mitigate his sentence, Hicks says. 

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