Toronto police Const. James Forcillo will not spend the night in jail before his appeal hearing next week, after his bail was extended at a hearing Thursday — 72 hours before the suspended cop was due to surrender and be placed behind bars.

The move comes after his lawyers successfully argued to have the court consider allowing new evidence to be introduced as part of Forcillo’s appeal of his attempted murder conviction in the July 2013 shooting death of Sammy Yatim.

A hearing discussing that fresh evidence — which involves a recent study examining police officers’ response to stress — will now be part of Forcillo’s appeal. This new, second phase of the officer’s appeal is expected to occur early next year.

It’s rare for evidence not heard at trial to be introduced during an appeal hearing, and it must meet a high bar in order to be considered, including that it must not have been available at the time of the initial trial.

“At minimum, the fresh evidence must relate to an important issue at trial and could have affected the verdict,” said Daniel Brown, criminal lawyer and a Toronto director with the Criminal Lawyers Association.

Brown, who isn’t involved in the case, added that it’s also uncommon for someone appealing a conviction not to surrender back into custody before the appeal begins. However, the unique circumstances of the case — namely, that it will start next week but continue early next year — make Forcillo’s bail extension reasonable, he said.

James Forcillo leaves court after being found not guilty of second-degree murder and manslaughter after firing two volleys of shots at knife-wielding 18-year-old Sammy Yatim in empty streetcar.

Forcillo was convicted of attempted murder in the death of 18-year-old Yatim, who died in a barrage of the officer’s bullets on July 27, 2013, after the teenager exposed himself and pulled a small knife on passengers on the Dundas St. W. streetcar.

The officer discharged his weapon in two distinct volleys separated by five-and-a-half seconds. Forcillo fired three times — during which the fatal shot was fired to the heart — then six more times as Yatim lay on the floor of the streetcar, paralyzed and dying.

In January 2016, a jury determined Forcillo’s first three shots were not a criminal act, but found the second volley was neither in self-defence nor justifiable, convicting him of attempted murder.

Six months later Justice Edward Then, the trial judge, handed down a six-year prison sentence, finding the second volley of shots was “unnecessary and unreasonable and excessive from the outset.” That same day, Toronto police Chief Mark Saunders suspended Forcillo without pay.

The following day, after one night in jail, Forcillo was granted bail pending his appeal.

In a hearing beginning next week, Forcillo’s appeal lawyers Michael Lacy and Joseph Wilkinson will argue that Forcillo should be acquitted or a new trial should be ordered. They will also argue that the sentence handed down by Then was “severe” and that — if the conviction is upheld — the officer should serve a suspended sentence.

Following those arguments, expected to be heard at the Court of Appeal until Wednesday, the second part of the appeal on the issue of fresh evidence will take place some time in the new year.

The separation of the two parts of the hearing allowed the officers’ lawyers to argue his bail should be extended until the beginning of the second part, meaning he must surrender to the court by April 2, 2018 or the night before the second half of the appeal, “whichever is earliest,” states Forcillo’s new bail agreement.

“In the circumstances, given that it is inevitable that the court will not be able to dispose of the appeal until the fresh evidence application had been resolved, (Forcillo) is requesting that he not be required to surrender into custody on the day prior to the hearing of the appeal,” reads an affidavit prepared by an employee for Forcillo’s lawyers’ firm, Brauti Thorning Zibarras, filed earlier this week.

Given the circumstances of the appeal, the extension of Forcillo’s bail is “perfunctory” and not evidence of preferential treatment for a police officer, said criminal lawyer Reid Rusonik, who is not involved in the case. Bail is “routinely extended if the accused follows the conditions” and the defence is not deliberate delaying, he said.

The fresh evidence Forcillo’s lawyers are bringing forward includes a recent study of the physiological stress responses in members of Toronto police’s Emergency Task Force.

According to a document on the new evidence filed in court, the study could be used to attack the testimony of now-retired Toronto Deputy Chief Mike Federico, who stated that training inoculates officers against the effects of stress.

Lacy and Wilkinson state in documents filed with the court that the new evidence “assists in resolving the issue of the extent to which the training provided by the Toronto Police Service can mitigate the effects of stress (including perceptual distortions), which was contentious.”

“The proposed fresh evidence specifically addresses this point by measuring the officers who have received that training,” Forcillo’s lawyers state in written arguments filed last month.

Documents filed in support of Forcillo’s bail extension also state that he and his wife, Irina, divorced in July. The new bail document still includes Forcillo’s ex-wife as a surety, but names her as Irina Ratushnyak:

“She has subsequently taken her maiden name back. She and (Forcillo) remain on good terms and continue to live together and co-parent their two children,” the affidavit says.

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It states that Forcillo has complied with all his bail conditions “with no issue.” Those conditions include keeping the peace, being on good behaviour, remaining in Ontario and providing his passport to the Special Investigations Unit (SIU), Ontario’s police watchdog.

Forcillo must also remain in his residence at all times except under certain circumstances, including for medical emergencies, and have no contact with Yatim’s family, including his mother Sahar Bahadi, father Nabil Yatim and sister Sarah Yatim.

Forcillo’s appeal begins Monday.

Wendy Gillis can be reached at wgillis@thestar.ca