Sentencing - Homicide - Attempted murder - Particular sanctions - Imprisonment - Sentencing considerations - Aggravating factors - Mitigating factors - No previous record

Sentencing of Forcillo following his conviction for the attempted murder of Yatim. Forcillo was a police officer with three years of experience, trained to use his firearm in a lethal manner only in cases where a threat was imminent. He knew that a potential threat was not justification for using lethal force. Forcillo was one of the first three officers to respond to a call about an armed person on a streetcar. Forcillo positioned himself in front of Yatim, armed with a knife, pointed his gun, and demanded that Yatim drop the knife. Yatim refused, and hurled insults at Forcillo. Forcillo instructed Yatim not to move. Yatim took some steps. Forcillo fired six shots into Yatim’s chest and arm. Yatim fell to the floor of the streetcar on his back. Expert evidence established he was rendered paralyzed from the waist down by one of the shots, and that his death resulted from another shot from this volley. Forcillo claimed he saw Yatim begin to raise himself up and to switch his knife from one hand to the other. Perceiving this to indicate that Yatim intended to resume an attack, Forcillo fired six more shots at Yatim’s groin area. Expert evidence established that Yatim would not have felt any of the shots, and that none of them were the cause of his death. Video of the incident showed that Yatim did not in fact raise himself up at all after the first volley of shots. Forcillo was acquitted of second degree murder at his trial, the jury finding that he was justified in firing the first volley of shots into Yatim. He was convicted of attempted murder with respect to firing the second set of shots. Forcillo was likely to lose his job if his conviction was sustained on appeal. He provided many reference letters describing him as a family man devoted to his wife and daughters, thoughtful and caring. He had no prior criminal record. He had drawn his gun 12 times during his years as a police officer, but had never before fired it.

HELD: Forcillo was sentenced to six years’ imprisonment. Forcillo fired the second volley of shots with the specific intent to kill Yatim in circumstances where the shooting was unjustified, unnecessary and unreasonable. The second volley of shots did not result from an error in judgment on Forcillo’s part. There was no objective or subjective evidence to support Forcillo’s belief that Yatim was an imminent threat after the first volley of shots were fired. The second volley of shots was unlawful because it was excessive. It was an egregious breach of trust. Forcillo acted contrary to his police training and not out of fear, panic or stress. His conduct in firing the second volley of shots, coupled with the intent to kill, constituted a high level of moral blameworthiness. The fact that Yatim could not feel the impact of the second volley and did not endure long-term consequences did not remove the concept of harm from consideration. But for the fact that Yatim had already been rendered a paraplegic by the first volley and that his death was imminent, the injuries caused by the second volley would have been a very significant factor in assessing the gravity of Forcillo’s offence. Forcillo had alternatives available to him other than inflicting lethal force on Yatim in respect to the second volley. He did not give Yatim an opportunity to comply with a request to surrender his weapon. This distinguished Forcillo’s case from that of an officer convicted of manslaughter in relation to an altercation with a prisoner who was shot in a struggle over the officer’s gun. That officer had no alternative to using lethal force. Forcillo’s personal circumstances were significantly mitigating. The lack of planning and the fact that Yatim initiated the incident were also mitigating, but the mitigating factors were far outweighed by the aggravating factors. Sentence: Six years’ imprisonment - Criminal Code, s. 239.