Mandatory 5-year minimum could reach Supreme Court
Forcillo’s legal team plans to launch sentencing challenge
It’s a case that can seem more like a law-school hypothetical.
An on-duty police officer is cleared of murder for fatally shooting a young man, but found guilty of attempted murder for shooting him again five seconds later while the young man lay dying.
But the question of whether the officer in the scenario should be sentenced to a mandatory minimum sentence of five years is one that could go all the way to the Supreme Court of Canada, following the path of other constitutional challenges before it.
In addition to an abuse-of-process application, Const. James Forcillo’s legal team has said it will launch a constitutional challenge that will presumably centre on the minimum five-year prison sentence amounting to cruel and unusual punishment in the circumstances.
“For the most part, until fairly recently, those challenges were not meeting with much success. And that’s because the standard is quite high; it has to be a grossly disproportionate sentence, not just disproportionate,” says Debra Parkes, a law professor at the University of Manitoba.
The courts can now consider not just the facts of a specific case, but a reasonable hypothetical, on the lowest end of the spectrum of the offence.
Attempted murder, she notes, has a very high level of intent, or what the court calls moral culpability.
“To ever be convicted of attempted murder, you have to have the intent to kill,” she says.
“It is harder to make the case that there are low-level people for whom the sentence would be grossly disproportionate.”
Much depends on the facts of the case, which are now up to the judge to decide — and the jury’s verdict, as lawyer John Struthers observed, “leaves a wide strike zone.”
What was Forcillo’s motive? Was he mistaken in his perception of Sammy Yatim sitting up, or did he make that up? Either way, how does that affect the seriousness of his crime? And — most unusually with a charge of attempted murder — what can be made of the fact that Yatim was going to die regardless of the second volley of shots?
“The Crown is going to try and punish Forcillo for the death of Sammy Yatim. And the defence will say you can’t punish him for that because Yatim was killed legally,” says University of Alberta law professor Peter Sankoff.
What may be important to a constitutional challenge, he says, is a finding on the amount of risk the attempt posed to Yatim — who was going to die anyway.
That it is a police officer challenging the mandatory minimum laws is “an interesting turn of events,” says Laura Berger, a director at the Canadian Civil Liberties Association, which opposes all mandatory minimum sentences on the basis that they rob judges of the discretion to appropriately sentence each offender.
“I hope it causes people to maybe reassess the kind of stereotypes about the criminal justice system,” she says. “What a criminal looks like and what a fair sentence looks like.”