The Importance of Objectivity


In the past week, there have been two extremely high-profile cases in the media: the murder and attempted murder trial of James Forcillo (http://www.cbc.ca/news/canada/toronto/james-forcillo-judge-instructions-1.3411512), the Toronto police officer who shot and killed 18-year-old Sammy Yatim on an empty streetcar in 2013, and the Twitter-focused criminal harassment trial of Gregory Alan Elliott (http://www.cbc.ca/news/canada/toronto/twitter-harassment-trial-verdict-1.3415112).

Although these seem like very dissimilar cases on the surface, there is an important connection between them—the importance of objectivity.

In the Forcillo case, the original charge to the jury (in which the presiding judge provides jurors with instructions and guidance), Justice Edward Then told jurors “the question [they] have to grapple with is not whether the 18-year-old posed a real threat ‘but rather whether Officer Forcillo reasonably believed in the circumstances that he was being threatened’.” (http://www.cbc.ca/news/canada/toronto/james-forcillo-trial-jury-instructions-1.3409671) Justice Edward then added, “Even if it was a mistaken belief, as long as it’s reasonable, it can be justified.”

On January 21, after considering submissions from counsel, Justice Edward then interrupted jury deliberations in order to provide clarifications and corrections. As Alyshah Hasham writes in an excellent article in the Toronto Star:

[Forcillo] has pleaded not guilty and put forward two defences that apply to both charges: that he was acting in self-defence; and that he, as a police officer making an arrest, was justified in using lethal force because he had reasonable grounds to believe it was necessary to protect himself or others from death or grievous bodily harm…

 A key correction Justice Edward Then made Thursday to his previous instructions was that simply accepting Forcillo’s testimony — that he believed he had reasonable grounds to shoot Yatim — would not be enough to acquit him.

 The jury must still consider whether the shooting was objectively reasonable in the circumstances, Then said.

 Another correction relates only to the charge of attempted murder. Then initially told the jury a third defence was applicable: the so-called “mistake of fact” relating to Forcillo’s assertion that, prior to the second round of shots, he saw Yatim sit up to a 45-degree angle. This is not supported by video evidence…

 Under the defence of mistake of fact, the judge initially told the jury, if the jury accepts Forcillo honestly but mistakenly perceived that Yatim sat up, knife in hand, and was in the process getting up to attack him, then they would have to acquit him “even if the mistake was unreasonable.”

 He corrected this Thursday: “The accused is not entitled to an acquittal simply because you find he mistakenly perceived Mr. Yatim raised himself up to a 45-degree angle, nor is he to be convicted if he did not.”

 Instead, he told the jury, they could consider a mistake of fact as a factor in the other two defences raised. (http://www.thestar.com/news/crime/2016/01/21/judge-interrupts-forcillo-jury-deliberations-to-correct-legal-instructions.html) (Emphasis added.)

Many legal tests incorporate some measure of objectivity. Some tests are strictly objective, while most consider both subjective and objective components, usually by first looking to see whether an individual held a particular opinion or perception of the situation and then moving on to a determination of whether that opinion or perception can be considered to be objectively reasonable in the circumstances. Very few legal analyses are purely subjective, largely because subjectivity is—by its very nature—virtually impossible to predict, measure, or examine. Although law cannot ever fully be “scientific” (which is likely not a bad thing…), it is necessary for the proper functioning of our legal system—which is based on the rule of law—that there is a high level of predictability and certainty. Our criminal justice system—which exists at a societal level to regulate actions harmful to society as a whole—would be chaotic and completely impracticable if individuals’ perceptions, opinions, and feelings alone dictated guilt or innocence in all cases.

This brings me to the case of Gregory Alan Elliott. Two women’s rights activists, Stephanie Guthrie and Heather Reilly, accused Elliott of harassing them through Twitter in 2012. As Ashley Csanady writes in the National Post:

The allegations began amid discussions of feminist issues that became increasingly nasty. After Guthrie posted the identity of an Ontario man who made a violent video game depicting a prominent American feminist, Elliott responded in vehement opposition. That was in July 2012 and by the next month their interactions became so heated Guthrie blocked Elliott — a move that prevents a Twitter user from viewing one’s posts when logged into the website. Reilly’s interactions with Elliott were never as cordial as Guthrie’s — the latter at one point had dinner with the accused before things went sour — and from almost the beginning both were hurling 140-character insults.

 The women continued to mention Elliott online, often mocking him and engaging in campaigns to portray him as a misogynist. But he also continued to mention them or tweet at them, going so far as to note he knew a Toronto bar where Reilly was one evening. (http://news.nationalpost.com/news/their-fear-is-hard-to-justify-replies-to-toronto-mans-twitter-insults-couldve-swayed-court-ruling)

Ultimately, Justice Brent Knazan “believed both women felt genuinely harassed and scared, but his judgment also found there were no objective reasonable grounds for them to be fearful.” (http://news.nationalpost.com/news/their-fear-is-hard-to-justify-replies-to-toronto-mans-twitter-insults-couldve-swayed-court-ruling)

Section 264 of the Criminal Code states:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.   (Emphasis added.)

In this case, regardless of the fact that Guthrie and Reilly felt harassed, the court found that there was no objectively reasonable basis for them to have feared for their safety. A subjective feeling or perception—without an objectively reasonable basis for that feeling or perception—is insufficient to ground a finding of guilty for criminal harassment.

Everyone living in Canada is a member of a larger community. Individual actions do not take place in a vacuum; they impact other members of the community. In general, we tend to evaluate actions objectively—in the context of community standards, rather than looking specifically at what another individual community member thinks of those actions. This is the significance of the concept of objective reasonableness—it is the golden thread that runs through all individuals living in our society, linking us despite our many varied opinions, experiences, and perceptions.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.