The facts of the case are like something that would appear on a law school exam, says criminal defence lawyer Daniel Brown. Relevant in the case were mandatory minimum sentences for firearms offences, suicide by cop defences and the unique situation in which the flurry of shots that killed Yatim were split into two groups and dealt with separately.
The main issue in the appeal was the breaking up of the nine shots used by Forcillo into two separate segments. The first three shots that killed Yatim were ruled justifiable, but for the second six shots, Forcillo was convicted of attempted murder.
It was submitted by Forcillo’s defence team that the nine shots should not have been split up, but the Court of Appeal reaffirmed the decision to treat them separately.
Brown says it may be the only time someone is found not guilty of killing someone because they were justified in doing so and then found guilty of attempting to kill them.
“It’s a really rare situation where this happens, but there was nothing perverse about it happening in this case,” he says.
Brown likens the case to an arsonist attempting to kill a couple by burning their house down, only to learn they died of natural causes before the fire — it does not matter if the person you are trying to kill is already dead, he says.
“Attempted murder is about your state of mind, that you’re attempting to kill someone. And it doesn’t change the fact that they were already dead — you can still try and kill someone who’s already dead,” Brown says.
The court rejected the argument by Forcillo’s lawyers that Yatim wanted to die as a way of justifying the killing. The court said this was only relevant to the initial shots, for which Forcillo was already exonerated, Brown says.
Forcillo was given a six-year sentence, one year above the mandatory minimum for attempted murder with a firearm. Forcillo’s lawyers argued that the mandatory minimum should not have applied in the case because he carried a firearm as part of his job.
Michael Dineen of Dawe Dineen says the court’s rejection of Forcillo’s legal team’s dispute over the mandatory minimum sentence does not necessarily mean mandatory minimum sentences for attempted murder with a firearm will be ruled reasonable in the future.
“I think the fact that they leaned so heavily on the specific intent to kill as unjustified in upholding this one means that the others aren’t necessarily safe and if you imagine a comparable situation,” Dineen says. “Here we have fairly extreme use of force. If we have one bullet, not necessarily shot with the intent to kill, that the mandatory minimum introduced for those might well still be unreasonable.”
Brown says that, in the past, the mandatory minimum sentences for various offences were ruled unconstitutional because they could cover a wide range of circumstances.
For this particular case, given the fact that Forcillo shot Yatim three times and then another six times while he lay on the floor with the knife still in his hand, there was not a wide range of scenarios that would justify going below the minimum sentence threshold, says Brown. The gravity of the offence and not the mandatory minimum was what warranted the sentence.
“This was kind of an egregious breach of trust. This officer was charged with protecting the public and, in this particular scenario, he used a firearm to kill someone when it wasn’t justified, when his job was not to kill him, it was to protect him and to protect everyone else,” he says.
“The Court of Appeal said that that was a perfectly appropriate type of sentence and that there was no reason to go below that mandatory minimum, nor could they think of a scenario where it could be warranted,” says Brown.
Forcillo will have the opportunity to appeal to the Supreme Court of Canada, though Brown says the probability of success is low.
To clear the threshold to be granted permission to appeal, Forcillo’s case must be shown to be of national importance. Brown says the issue of mandatory minimum sentences is one of national importance but the Supreme Court has already ruled on this particular mandatory minimum in the past.
“The likelihood that James Forcillo will be successful in bringing an appeal to the Supreme Court is remote,” he says. “In these circumstances because it’s just so rarely granted the right to bring a unanimous Court of Appeal verdict to the Supreme Court is very limited and it’s statistically unlikely he’s going to be successful even to have the Supreme Court hear his appeal.”
Michael Spratt, a criminal defence lawyer and partner with Abergel Goldstein & Partners LLP, says this ruling confirms that the criminal law applies to police officers just like any other citizen.
“There are no special rules or exceptions for the police. Simply put, with great power there must also come great accountability. And in upholding the sentence of six years, which is one year over the mandatory minimum sentence, the court recognized the seriousness of Forcillo’s crime,” Spratt said in an email statement. “Ironically, despite rejecting the constitutional challenge to the five-year minimum sentence, the court’s decision also proves that we do not require mandatory minimum sentencing laws to ensure that our courts impose appropriate and meaningful sentences.