An Interview with Michael Lacy

Michael Lacy is a partner at Brauti Thorning LLP where he practices criminal law at both the trial and appellate levels. Lacy often represents police officers charged with criminal offences. R v Forcillo, which Lacy argued at the Ontario Court of Appeal in 2018, involved appealing a police officer’s conviction for attempted murder.

R v Forcillo: Appealing a Police Officer’s Conviction for Attempted Murder

Lacy has often been asked to advise police officers regarding wire taps. As a result, police officers tend to ask Lacy for legal representation when they face criminal charges.

Forcillo was on the scene after a passenger of a Toronto streetcar pulled a knife and began acting aggressively towards other passengers. Once the knife-wielding man was alone on the streetcar, Forcillo shot him three times. The man retrieved his knife, despite being stuck on his back as he approached death, and so Forcillo shot him six more times less than six seconds after the first volley of shots.

At trial, the gunshots were considered two separate transactions – the first three gunshots (second-degree murder) and the last six (attempted murder). Although Forcillo was acquitted of second-degree murder, he was convicted of attempted murder.

On appeal, Lacy argued that the shootings should not be two separate transactions: since the jury found that Lacy acted lawfully in self-defence when he killed the victim with the first three shots, he should not be guilty of attempted murder for the subsequent six shots. Even though the victim was already dying, Forcillo didn’t necessarily know that due to the tension of the situation. This was a difficult appeal because the factual record wasn’t in Lacy’s favour – Forcillo admitted to reassessing the situation after firing the first three gunshots. Although the Ontario Court of Appeal dismissed Forcillo’s appeal, Lacy maintains that the definition of “transaction” for the purposes of criminal liability remains an interesting legal question.

Lacy thinks that juries view accused police officers less favourably now than in the past. He believes that juries used to be more likely to acquit police officers for an alleged offence. In a case like Forcillo, “it’s not like [the police officer] was involved in organized crime and went out to intimidate someone and shot them and killed them. Instead, it was someone who started their shift that day as a police officer and something went horribly wrong.” Fifteen years ago, Lacy believes jurors probably gave police officers a stronger benefit of the doubt. Now, Lacy says it seems as though police officers are held to higher standards than other people when they get charged.

Developing An Early Interest into a Career

Michael Lacy didn’t grow up in a family of lawyers, nor did he have personal ties to any lawyers. Yet he always wanted to be a lawyer. As a child, Lacy often saw Eddie Greenspan, a notable criminal defence lawyer, on the front page of the newspaper. Those newspapers caught Lacy’s eye and attracted him to the idea of practicing criminal law. Lacy developed his interest in criminal law further during law school at Osgoode. He was drawn towards litigation and had an aptitude for criminal law, so it was the clear career path for him to pursue.

Early Years as a Lawyer

Lacy articled at the respected criminal law firm of Gold and Fuerst. They didn’t have any associates at the time – it was just Lacy with the two partners and another articling student. The small firm atmosphere provided Lacy with regular exposure to trials and appeals. He helped prepare factums for upcoming trials and appeals and then went to court with the partners to watch their oral arguments.

Within three months of being called to the bar, Lacy was arguing an appeal. Working in a small firm provided him with these experiences. He quickly adjusted to the increased responsibilities being provided to him, which he credits to the occasions he shadowed the partners of his firm in court. “You just knew how to present an argument because you watched two great advocates do it,” Lacy says.

Despite Lacy’s passion for presenting legal arguments, his interest doesn’t translate to public speaking generally. Apparently, this is not so rare among lawyers in the criminal bar: “I know a lot of people who practice criminal law who would tell you that they’re shy, that they don’t enjoy cocktail settings or small talk.” However, criminal lawyers are still great litigators. Lacy believes this is possible because litigation and public speaking require distinct skill sets: “If you asked me to do a speech about some discrete area of criminal law, I could probably do that without a problem. But if you asked me generally to give a speech, I’d stress more about that than giving an argument at the Supreme Court of Canada.”

It all comes down to confidence and hard work – that is why you do not need to be a great public speaker to succeed as an oral advocate. “If you work hard enough and you’ve thought through the issues, the rest kind of comes naturally.” By the time Lacy appears in court, he does not have any cause for concern because he already knows the material at such an advanced level.

Trials vs Appeals

Appeals are very different than trials. In an appeal, the factual record has already been finalized in most cases and your argument is mostly limited to whether the trial judge made any legal errors. You must deliver a compelling argument for why the appellate court should interfere. In a trial, “you get to shape the evidence,” he says. You determine what the trial record looks like. “There’s a lot more strategy involved in terms of what kind of evidence you introduce and the kinds of motions you bring.” Moreover, preparing for a trial requires significantly more time with the client. A trial lawyer must get instructions from their client and learn about their perspective on the events that transpired in order to develop a sound trial strategy. On appeal, the lawyer doesn’t need their client’s input because they are preparing a legal argument – the facts have already been finalized.

Despite their differences, Lacy believes his appellate work complements his trial preparation. “You have to think differently about doing a trial. It’s a different skillset. I like doing trial work, but I would never want to give up the appellate work that I do either. I think it makes me a better trial lawyer – the fact that I do appeals.”

Another sharp distinction between trials and appeals is their success rate. It isn’t easy to be successful on criminal appeals. The success rate on the criminal defence lawyer’s side of an appeal is usually only around 20%. Yet that doesn’t dissuade Lacy. After preparing his factum and oral argument, Lacy usually feels like he has a chance at winning. Also, Lacy enjoys the opportunity to litigate against some of the best Crowns in the province, if not the country. Lacy views his appeals as a challenge that keep him sharp. But ultimately, “the 20% that you win are the ones that keep you going.”

Advice for Aspiring Litigators

Lacy recommends mooting and trial advocacy to develop your skills. But more importantly, he emphasizes the importance of being a student of advocacy. Watching lawyers in court can help you develop your own style. Lacy himself enjoys watching Supreme Court of Canada hearings to see how other lawyers respond to questions. “You don’t have to emulate anyone, but [it helps you] pick up things that you think are effective and that work with your own personality. That’s how I think you become a better advocate.”