TORONTO — Lawyers for a Toronto police officer found guilty of attempted murder in the shooting death of a troubled teen on an empty streetcar are asking a court to consider a sentence of house arrest for the man rather than time in prison.
Const. James Forcillo has filed a constitutional challenge to the mandatory minimum sentence of four or five years that he faces in the death of 18-year-old Sammy Yatim.
In January, a jury acquitted Forcillo of second-degree murder, but found the officer guilty of attempted murder for continuing to fire after the dying teen had fallen to the floor.
The public outrage over the July 2013 incident — which was captured on cellphone video that went viral — prompted the city's police chief to launch a review of officers' use of force and their response to emotionally disturbed people.
In documents filed with Ontario's Superior Court of Justice, Forcillo's lawyers argue that certain sections of the Criminal Code involving the mandatory minimum sentence for attempted murder are unconstitutional and weren't meant to deal with cases like Forcillo's.
"Imposing a mandatory minimum sentence of five years’ imprisonment in these circumstances is grossly disproportionate to the moral culpability of this offender, his circumstances and the circumstances of the offence," the submission said.
The lawyers also argued that Forcillo should not be facing the same sentence as a bank robber who deliberately shoots at a teller intending to kill her, or a husband who discharges a firearm intending to kill his wife who miraculously survives, or a hitman that shoots at the intended victim but misses.
The mandatory minimum, they argue, was never intended to apply to peace officers who legitimately carry a gun at the behest of the state in order to protect society.
"This is not about giving state actors special treatment. It is about ensuring that, when we ask men or women to arm themselves to protect the larger community, we will treat them justly and fairly when they make mistakes concerning how they use force."
Forcillo was duty-bound to protect the public from a knife-wielding Yatim, trained to draw his gun and had been found to be justified in killing Yatim, they said.
"The applicant believed he was acting lawfully," the submission said. "There was no planned and deliberated killing. The moral culpability of the applicant in the circumstances of this case is at the lowest end that can be reasonably contemplated for an attempted murder conviction."
The Crown is expected to file its own written submissions in the case in the coming weeks.
Forcillo's constitutional challenge will be heard as part of his sentencing hearing in Toronto, which is set to begin in mid-May.
