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CRIMINAL CODE OFFENCES - Homicide - Attempted murder

Friday, June 08, 2018 @ 8:08 AM  

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Appeal by accused from conviction and sentence. The appellant was a police officer with three years of experience. He was one of the first three officers to respond to a call about the victim, who was armed with a knife on a streetcar. The appellant positioned himself in front of the victim, pointed his gun, and demanded that the victim drop the knife. The victim refused, and hurled insults at the appellant. The appellant instructed the victim not to move. The victim took some steps and the appellant fired six shots into the victim's chest and arm. The victim was paralyzed from the waist down by one of the shots and fatally wounded by a subsequent shot. The appellant claimed he saw the victim begin to raise himself up and to switch his knife from one hand to the other. Perceiving this as an indication that the victim intended to resume an attack, the appellant fired six more shots at the victim's groin. The appellant claimed that the shooting was justified under either s. 25 (lawful use of force) or s. 34 (self-defence) of the Criminal Code. The appellant sought to introduce evidence of text messages from the victim's cell phone and Google searches to show the victim's state of mind. The trial judge refused to admit the evidence on the grounds it did not provide a basis to draw reasonable inferences about the victim's state of mind and, given the surveillance video, it was unnecessary. Finally, he found it could not inform the appellant's state of mind. The jury acquitted the appellant of second degree murder, but convicted him of attempted murder with respect to firing the second set of shots. The judge sentenced the appellant to six years' imprisonment. At the time of the offence, the appellant was 30 years of age. He was of prior good character and a devoted family man. The judge found, however, that these mitigating factors were outweighed by the aggravating factors, which included the unreasonable use of force, the egregious breach of trust and the high level of moral blameworthiness. The appellant appealed his conviction of attempted murder and sought leave to appeal the sentence imposed. On the conviction appeal, the appellant argued that the trial judge's instruction to the jury to consider the single shooting transaction as two discrete events and determine the appellant's culpability for each separately was logically perverse and legally impermissible. He also argued that the judge improperly excluded evidence relevant to the victim's state of mind. The appellant sought to appeal his sentence on the grounds that the mandatory minimum sentence was unconstitutional and that the sentence was unfit.

HELD: Appeal dismissed. The evidence was reasonably open to the interpretation that the circumstances pertaining to the first and second volleys were significantly different. Those differences left it reasonably open to the jury to conclude that the first volley was justified and the second was not. The jury was entitled to reject the appellant's evidence that he thought the victim was trying to get up when he fired the second volley. The appellant was not prejudiced by the inclusion of the two counts on one indictment as the Crown was clear they each related to different volleys of shots. Furthermore, the appellant's testimony was consistent with the Crown's approach to the encounter. It was not necessary to tell the jury they could only convict on attempted murder if they were satisfied that the second volley of shots was a discrete transaction. The verdicts on the two counts was neither unreasonable nor inconsistent and the trial judge's instructions were fair. The evidence of the victim's state of mind had no relevance to the attempted murder charge. Furthermore, there was no evidence to suggest that the appellant knew the victim's state of mind and therefore it could not have impacted on the appellant's assessment of the risk the victim posed. The trial judge made no error in dismissing the constitutional challenge. The mandatory minimum sentence of four years' imprisonment for manslaughter while using a firearm in the commission of an offence had been upheld by the Supreme Court and there was no merit to the argument that the mandatory minimum sentence was not intended to apply to police officers acting in the line of duty. The sentence of six years' imprisonment was not unfit. Sentence: Six years' imprisonment for attempted murder -- Criminal Code, s. 239.

R. v. Forcillo, [2018] O.J. No. 2263, Ontario Court of Appeal, Strathy C.J.O., D.H. Doherty and G.T. Trotter JJ.A., April 30, 2018. Digest No. TLD-June42018010