The mandatory minimum prison sentence for attempted murder with a restricted firearm was never intended to apply to police whose job is to protect the public, a lawyer for a Toronto officer found guilty in the shooting death of a troubled teen argued Thursday.
But the judge who will decide Const. James Forcillo’s sentence for attempted murder said he saw no reason why police officers should be exempt from the minimum of five years behind bars.
“It’s not a licence to kill,” Justice Edward Then said of police-issued guns. “Police officers are entrusted with the use of a gun for a particular purpose. In this case the jury has found that it wasn’t to serve and protect but it was with the purpose of attempting to kill.”
The legal sparring between Then and Forcillo’s defence team played out at the sentencing hearing for the officer, whose shooting of an 18-year-old nearly three years ago triggered public outrage in Toronto and prompted the city’s police chief to launch a review of officers’ use of force.
Forcillo fired two separate volleys – three shots and then six shots – at Sammy Yatim, who had consumed ecstasy and was wielding a small knife on an empty streetcar in July 2013.
A jury acquitted Forcillo of second-degree murder in Yatim’s death, but found the officer guilty of attempted murder for continuing to fire after the dying teen had fallen to the floor.
The Crown is asking for eight to ten years behind bars for the officer.
Forcillo’s lawyers, however, argue that given the particular circumstances of the case, Forcillo should get a sentence of house arrest, or, if that isn’t possible, a suspended sentence.
They also maintain that the mandatory minimum legislation is “overbroad” and would constitute “cruel and unusual punishment” if applied in Forcillo’s case.
“Police officers are under a statutory and common law duty to enforce the law and protect the public. They are duty-bound to confront danger,” said defence lawyer Lawrence Gridin.
The objective of the mandatory minimum was to target gun crime, he said.
“If the objective of the legislation is to prevent the proliferation of firearms, putting people like officer Forcillo in prison for five years doesn’t advance that objective in any way.”
Striking down the mandatory minimum wouldn’t “shield state actors” like Forcillo, Gridin added, but just make a range of sentences available for them.
“It’s not about giving state actors special treatment, it’s about recognizing that the law goes too far in trying to achieve its objective by capturing conduct it was really never meant to capture,” he said.
Then, however, pushed back, saying the mandatory minimum legislation appeared to be intended for everyone.
“If it’s applicable to ordinary citizens, as opposed to gang members and criminals, why is it not applicable to police officers?” he demanded, noting that much of the defence’s argument appeared to hang on the fact that Forcillo was issued a gun as part of his job.
Then also observed that those who choose to become police officers also opt to take on the duties associated with the role, including handling guns.
“It’s something that has to be done in a legal way,” he said of police use of their firearms.
“How can it possibly be a factor when justification for use of the weapon has been found by the jury not to exist.”
The Crown is set to make its arguments on Forcillo’s sentence next week.
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