Law Times

Law Times • JuLy 9, 2018 Page 7 www.lawtimesnews.com Mass murder and capital punishment BY PHILIP GIRARD R ecent mass shootings in the Unit- ed States have tended to confirm Canadians' sense that such events can't happen here. Similar events in Canada are not numerous, but those that have occurred are not well known. In particular, the biggest mass murder in Canada before Air India is almost un- known outside Quebec, where it occurred in 1949. It also involved an attack involv- ing an airplane, but the murderer was motivated by misguided love rather than politics. Three people hanged as a result of the 23 deaths that ensued, and one might have thought that their crime would have legitimated the death penalty for a long time. Yet, less than a decade after the last of these three went to the gallows in 1953, Canada saw its last state executions. Why? Joseph-Albert Guay had a jewelry business in Quebec City and he also ser- viced the north shore of the St. Lawrence as far as Baie-Comeau. His marriage to Rita Morel was unhappy, and he began an affair with a teenaged waitress, Marie- Ange Robitaille. Divorce being almost impossible in Quebec at the time, Guay resolved to murder his wife in order to marry Robitaille. His plan combined elements of great cunning with extreme naiveté, such as his purchase of a $10,000 insurance policy on the very day of his wife's murder. Guay arranged for his wife to f ly to Baie-Comeau via Canadian Pacific Air Lines on Sept. 9, 1949, on a pretext connected to his business. He then per- suaded a watchmaker friend, Généreux Ruest, to make a bomb out of dynamite, batter- ies and an alarm clock. Ruest's sister, Marguerite Ruest-Pitre, who had helped facilitate Guay's affair with Robitaille, purchased the dy- namite. She then delivered the package with the bomb to the airport at the last min- ute, as a parcel needing delivery to Baie- Comeau. Guay had planned for the bomb to go off when the plane was over the Saint Lawrence River. Given the river's depth and the state of forensic science at the time, it would not have been possible to reconstruct the events leading up to the crash. A five-minute delay in departure ruined these calculations. The bomb went off as scheduled, kill- ing the four crew members and all 19 passengers, including Guay's wife, but while the plane was over land, not water. Investigators quickly determined the true cause of the crash. Guay's attempt to cash in the insur- ance policy three days after the disaster naturally aroused suspicion and, within two weeks, he was arrested. There was little doubt that Guay would hang for the mur- ders, and he was executed in January 1951. Ruest and Pitre were charged as accomplices; both protested that they had been misled by Guay, but ju- ries did not believe them. Ru- est was hanged in July 1952 and his sister in January 1953. Pitre had the distinction of being the last woman hanged in Canada. Prime Minister Louis St- Laurent and his cabinet could commute death sentences to life imprisonment, but they did not do so frequently. On average, only 36 per cent of all death sentences were commuted while St-Laurent was in office, leaving some 80 persons to die on the gallows between 1948 and 1957. The big change came with John Dief- enbaker, a criminal defence lawyer who had seen the capital punishment process up close and did not like it. Commuta- tions shot up to 79 per cent while he was the prime minister. Only 14 persons were hanged on his watch (1957-63), including the last two people executed in Canada. Why did Guay's crime have so little impact on the fate of capital punishment? The notorious Coffin case provides part of the answer. In July 1953, the bodies of three Amer- ican hunters were found in the woods of the Gaspé. Local resident Wilbert Coffin was found to have some items of theirs in his possession. His murder conviction, based on circumstantial evidence, was upheld on appeal, and the Supreme Court denied special leave to appeal. Amid public suspicion that Coffin had been railroaded due to American pressure to find a culprit, the cabinet re- luctantly agreed to refer the matter to the Supreme Court. Five judges said they would have con- firmed the conviction, while two would have ordered a new trial. St-Laurent's cabinet did not interfere and Coffin was hanged in February 1956. Concerns about Coffin's possible in- nocence re-energized the abolition move- ment in Canada, pushing the recent Guay murders into the background, as did the death sentence given to 14-year-old Ste- ven Truscott after his controversial con- viction for the murder of Lynne Harper in 1959, even though it was commuted in 1960. Guay's final words, accurate at the time, turned out not to be prophetic — "Au moins, je meurs célèbre," translated to "At least, I die famous." LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He is also associate editor at the Osgoode Soci- ety for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. The lasting impact of the Forcillo conviction BY MARCY SEGAL E arlier this year, the Ontario Court of Appeal dismissed the appeal of former Toronto Po- lice Service officer James Forcillo over his conviction of attempted murder and the re- sulting sentence of six years. It was a unanimous judg- ment by Chief Justice George Strathy, Justice David Doherty and Justice Gary Trotter. In my opinion, it was a brilliant, well-reasoned decision. In its decision, the court confirmed that, in some circumstances, minimum sentences are warranted and it raised the bar for the introduction of fresh evidence on appeal. Their decision, in my humble view, sent a message to Ontario trial and appellant lawyers that they will not be swayed by public opinion and are not afraid to call out weak arguments. In January 2016, Forcillo was acquitted of murder for the shooting of Sammy Yatim, but he was found guilty of attempted murder. The conviction was based on facts presented at trial. On July 23, 2013, Forcillo was first on scene to a streetcar stopped on Dundas Street West, respond- ing to a call about a man with a knife. When he ar- rived, 18-year-old Yatim was standing at the door of an empty streetcar, holding a knife. The patrons and driver of the streetcar had been able to escape without resistance from Yatim, although, in fairness, many of them were threatened by Yatim prior to exiting safely. Forcillo was standing some distance from Yatim, with his gun drawn, ordering Yatim: "Drop the knife, drop the fucking knife." Yatim responded with insults, stat- ing: "You're a pussy, you're a fucking pussy." When an- other officer arrived on scene, Yatim stepped back into the streetcar. Forcillo warned Yatim, and said, "If you take one step closer, I will shoot you, I'm telling you right now." When Yatim said no, Forcillo responded by firing three shots. Yatim fell onto his back and, within six seconds, Forcillo fired six more shots at Yatim, who was lying on the ground. The defence argued at trial that the two rounds of fire were one distinct incident. The Crown, by add- ing a charge of attempted murder to the indictment, was able to put before the jury its theory that Forcillo's two rounds of firing constituted two distinct acts or actus reus. The Crown, I opine, was cognizant of the fact that since Forcillo was a police officer, a jury might not be inclined to find him guilty of murder. However, I believe the jury reasoned that, as a "compromise ver- dict," it could, conceivably, find that Forcillo's actions in shooting Yatim six times while he lay on the ground was not justified. In my opinion, Forcillo was, in essence, between a rock and a hard place. He had the support of the To- ronto Police Service, so he wasn't about to throw the TPS under the bus and argue that his training was in- adequate to deal with such a situation and/or that his own proclivity toward aggression affected his own per- ception of danger. Had he testified as such, the jury might have been sympathetic to Forcillo and acquitted him of all counts. However, had he done so, I believe it would have been very difficult for Forcillo to retain his position as a po- lice officer. After the conviction of Forcillo in 2016 — and knowing that attempted murder with a firearm car- ried a minimum term of imprisonment for five years — the defence then challenged the constitutionality of the minimum-sentence provisions to no avail. Justice Edward Then sentenced Forcillo to six years in jail. Forcillo appealed and received bail pending appeal. However, after this, Forcillo was arrested for breach- ing his bail by not residing at his residence. And then Forcillo was arrested for perjury and obstruction of jus- tice. Forcillo, through his appeal lawyers, attempted to argue at the Court of Appeal that Yatim's state of mind was relevant and the trial judge erred by excluding such evidence. The Court of Appeal rejected such an argument, since Yatim was a stranger to Forcillo and Yatim's state of mind was a red herring. Forcillo then argued that the trial judge erred by instructing the jury to consider the shooting as two discrete events and their task was to determine his culpability separately for each. Again, the Court of Appeal rejected that argument. The elephant in the room was the fact that Yatim, now paralyzed while he lay on the ground, was no longer an imminent threat to Forcillo and yet Forcillo chose to shoot six more bullets into him, because he "perceived" that Ya- tim was getting up from the ground. It used to be said that a picture paints a thousand words. With the advent of technology, video evidence now replaces the still shot. Without the video footage, Forcillo might have been able to convince a jury that his perception was accurate. To the chagrin of Forcillo, the video surveillance clearly showed that Yatim did not attempt to get up. The video surveillance also captured the distance be- tween Yatim and Forcillo — far enough away to not justify even one shot. Forcillo proffered fresh evidence before the Court of Appeal, namely, two reports from psychologists providing opinion evidence concerning the "impact of high-stress, life-threatening situations on perception and cognition." The court heard but rejected the evi- dence as not being capable of affecting the result at trial. Forcillo then argued that Then was wrong to uphold the constitutionality of the minimum sentencing pro- visions. Again, his argument was rejected. After the decision was published, TPS representative Mike McCormack told a media outlet that Forcillo was "hit hard" by the judgment. However, in my opinion, it is Yatim and his family who have been hit the hardest by what transpired. Forcillo was fortunate to receive a six-year sentence versus a life sentence. Having reviewed a fair number of sentencing cases for attempted murder as part of my re- search for this article, I can assure readers that the usual starting point is eight years. Forcillo is young and will be eligible for day parole after one year. The Yatim fam- ily, however, is serving a life sentence. LT uMarcy Segal is a criminal lawyer turned advocate and consultant. Called to the bar in 1990, she began her ca- reer in criminal law and has transitioned to litigation and consulting with companies to reduce sexual harass- ment and harassment in the workplace. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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