COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Forcillo, 2016 ONCA 606

DATE: 20160729

DOCKET: M46749 (C62370)

Gillese J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

James Forcillo

Appellant/Applicant

Counsel: Michael Lacy and Bryan Badali, for the appellant Susan Reid, for the respondent

Heard: July 28, 2016

ENDORSEMENT

[1] James Forcillo (the “Appellant”) was working as a Toronto Police Service officer on July 27, 2013, when he shot and killed Sammy Yatim. After a trial by judge and jury, he was acquitted of second degree murder but convicted of attempted murder. On July 28, 2016, he was sentenced to six years in the penitentiary. He brings this application for release from custody pending the determination of his appeal from conviction and sentence, pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Section 679(3) provides:

(3) In the case of an appeal referred to in paragraph (1) (a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[3] The Crown opposes the application on two grounds. First, it contends that the appeal is frivolous. Second, it submits that detention in this serious case is required in the public interest.

ANALYSIS

[4] In my view, this application turns on the third ground, namely, whether the Appellant’s detention is necessary in the public interest. Accordingly, I will deal with ss. 679(3)(a) and (b) in brief compass.

S. 679(3)(a) – Is the Appeal Frivolous?

[5] In my view, it cannot be seriously contended that this appeal is frivolous. A frivolous appeal, within the meaning of s. 679(3)(a), is one that does not raise arguable issues: R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38.

[6] I will deal with the merits of the appeal more fully below. It is sufficient at this stage to say that the grounds of appeal that have been raised are stronger than merely not being frivolous.

S. 679(3)(b) – Will the Appellant Surrender into Custody?

[7] The Crown concedes that there is no real risk that the Appellant will not surrender into custody in accordance with the terms of the order.

S. 679(3)(c) – Is the Appellant’s Detention Necessary in the Public Interest?

[8] Thus, the real question on this Application is whether the Appellant’s detention is necessary in the public interest.

[9] The public interest criterion has two components: public safety and public confidence in the administration of justice.

Public Safety

[10] Public safety is concerned with the risk that the Appellant, if released, would commit further offences by posing a risk to others or to the administration of justice: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.). There is no suggestion that the Appellant would re-offend if released and the Crown concedes this. He does not pose a risk to the public safety.

Public Confidence in the Administration of Justice

[11] Determining whether detention is required based on public confidence in the administration of justice requires the court to balance the conflicting principles of reviewability and enforceability. That is, the public interest criterion requires a judicial assessment of the need to review the conviction (reviewability) and the need to respect the general rule of immediate enforceability of judgments (enforceability): Farinacci, at para. 43.

[12] In performing this assessment, the court must consider the seriousness of the offence for which the Appellant has been convicted and assess the merits of the appeal.

[13] The Appellant has been convicted of a very serious offence: attempted murder. He faces the prospect of a lengthy period of incarceration: six years.

[14] It must be remembered that this court’s role in assessing the merits is not to decide the appeal. My role is limited to assessing whether the merits of appeal are sufficiently strong to shift the balance in favour of release. On my assessment, the merits of the appeal shift the balance in favour of reviewability. Public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected: see Farinacci, at para. 43.

[15] In making my assessment of the merits of the appeal, I took into consideration that, to the best understanding of both parties, there has never been a case such as this. The Appellant fired nine shots. The evidence shows that Mr. Yatim died as a result of one of the first three shots. The second degree murder charge related to the first three shots. The Appellant was acquitted of that charge. That is, the jury found that the killing of Mr. Yatim was justified. However, the Appellant was convicted of attempted murder in respect of the second volley of shots (the other six). There is strength to the Appellant’s grounds of appeal related to whether the indictment improperly charged a single transaction as two counts and whether the verdicts are inconsistent. Having found this of sufficient weight, I need not express a view on the strength of the other main category of grounds of appeal.

[16] I have also taken into consideration the Appellant’s assurances that he will perfect his appeal and set it down for hearing in a timely fashion. To assist with this, I have asked Justice Doherty to case manage this appeal and he has agreed.

[17] I would impose, as a condition of release, a surrender date of November 9, 2016, and direct that the parties attend before Justice Doherty before that date to advise on the status of the appeal. They may address a variation in the surrender date during that attendance.

[18] By imposing this early surrender date, the public will see that meaningful steps have been taken to ensure that the appeal is heard as expeditiously as possible. This, too, is a factor going to the enforceability component of the public confidence in the administration of justice criterion.

CONCLUSION

[19] The Appellant has been on a release order, without incident, since August 20, 2013. Apart from this application, each time the issue of bail has been before the courts, including after the Appellant’s conviction for attempted murder, the Crown has consented to bail being granted.

[20] The Appellant’s release, pending the determination of his appeal, poses no risk to the public as there is no risk that he would commit further offences. For the reasons given, despite the seriousness of the offence for which the Appellant stands convicted, in my view, fully informed members of the community will objectively understand and accept that it is not contrary to the public interest that he be released.

DISPOSITION

[21] For these reasons, the application is granted. I have addressed the matter of the surrender date. I am in the courthouse and available to sign the release order. If the parties are unable to resolve the matter of the other conditions of release, I may be spoken to.

“E.E. Gillese J.A.”