Compromise verdicts are a reality of jury trials in Canada, where 12 people must come to a unanimous decision to find guilt of anything. In fact, both the Crown and the defence often pursue compromise verdicts.

When it charges someone, the Crown often includes charges of less serious offences. It does this to guard against juries not being able to come to unanimous verdicts of guilt on charges with more serious penalties.

Defence lawyers such as myself do everything we can to have less serious charges included in the indictment, if we fear we might lose the trial on the more serious charge if the jury only has a choice between finding guilt or letting the accused walk completely free. Conversely, if we think the accused is in jeopardy only of being found guilty of a less serious charge, we do everything we can to ensure the trial only takes place on the more serious charge.

This is why the Crown’s decision to charge Toronto police Const. James Forcillo with only one charge —second degree murder — for shooting Sammy Yatim on that Dundas streetcar is raising eyebrows, since a finding of guilt brings an automatic life sentence for the officer.

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Second degree murder has almost certainly been charged on the basis that the officer used excessive force in self-defence and/or in the defence of others. The charge of manslaughter, which carries a mandatory minimum penalty of four years (when a firearm is involved), is more likely to result in a compromise finding of guilt, but it would not be available as an alternative verdict if there is a finding of excessive force. Legally, it is second degree murder or nothing.

Furthermore, self-defence is a legitimate defence to any lesser charge the Crown could lay. If the Crown did charge Forcillo only with an offence such as reckless discharge of a firearm instead of second degree murder, supporters of the officer would complain it was done to make rejecting self-defence more palatable for a jury — while those demanding justice for the young man would cry out the officer is being allowed, literally, to get away with murder.

On the other hand, there may also be grounds in the second volley of shots fired by the officer to have charged first degree murder. Regardless of his reason for firing the first volley, there was opportunity according to the law for the requisite planning and deliberation to kill to have taken place in the pause before the second volley. Shooting at someone a number of times — then pausing and shooting at them a number of other times — can be seen as some evidence of deciding and preparing to kill.

Unless the evidence is clear the young man on that streetcar was not rendered harmless by the first volley, it should be for a jury to decide if the second volley wasn’t specifically intended to kill him. Legal history is replete with examples of people wounding someone without an intention to kill but then deciding to go further. A jury may well acquit of first degree murder, but that would make a second degree murder compromise finding of guilt more likely.

Why has the Crown chosen to charge Forcillo as it has?

Perhaps the noblest possibility is second degree murder is what the Crown honestly believes happened. While charging first degree murder is possible, the thinking would go, it’s such a stretch as to be morally wrong. Perhaps the most ignoble possible reason for second degree murder is that such a charge will satiate the public appetite for justice right now — while eventually satiating the police force and its members later on, when the officer is acquitted.

The Crown should have publicly announced its reason for the charge. It is difficult to imagine a case where the public has a greater need to know what its government’s agents have done and are now doing.

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Inquiry best option

In fact, public accountability may not be best served by a trial at all, regardless of the charge or charges. The Crown has the discretion not to prosecute if it is deemed in the public interest not to do so. The public interest here may be best served by an inquiry where the officer would be a compellable witness, unlike at his own trial, where he may never even testify.

There would likely be initial outrage if the charge is dropped in favour of an inquiry. But the law requires the Crown to act not on knee-jerk public reactions but on the basis of what a reasonable person would think, once fully apprised of all of circumstances and the issues and values at stake.

Surely the reasonable person here is most concerned that this kind of heartbreaking tragedy does not happen again. There is no better way to begin to ensure this than a vigorously conducted, wide-ranging and open inquiry into why this shooting happened in the first place and why Toronto Police Service officers are so regularly shooting Torontonians in crisis.

Is it poor training? Is it poor procedure? Is it something more fundamental about police culture in general? Or is it something uniquely wrong with the individuals who constitute the front-line rank and file of the Toronto Police Service?

Historically, convincing a Canadian jury to find an on-duty police officer criminally culpable of even a relatively minor act of violence against an armed suspect has been nearly impossible. None have ever been found guilty of murder.

Forcillo’s lawyer may only need to argue the first volley was mandated by his training about when an officer is in danger; that the second was out of fear the first had failed in its defensive purpose; and then rely on favourable case law, holds that reasonable force is not to be measured to some legal nicety.

If Forcillo is, indeed, tried and acquitted on a charge it is practically impossible to have him found guilty of, we may never get an answer to our questions. If he is convicted, he may become a scapegoat — the “one bad apple” in the bunch — that covers up more insidious problems. Whatever Forcillo did or did not do, he did it in front of many of his fellow officers who, at best, did not try to stop him.

The Toronto Police Service can still bring internal proceedings against Forcillo after the inquiry and dismiss him if this is justified. He need not legally posses a firearm again.

More important, Sammy Yatim’s tragic death may, by causing an inquiry, save the life of other Torontonians and usher in a new and better era of policing for the city.

Reid Rusonik is a Toronto criminal defence lawyer and managing partner of Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini, LLP.