Mandatory minimums not constitutional?

Mandatory minimum sentences for attempted murder with a firearm were designed to penalize those involved in criminal activity and not police officers trying to protect the public, say lawyers representing the Toronto constable convicted of attempted murder in the death of Sammy Yatim.

James Forcillo is asking Ontario Superior Court Justice Edward Then to find that these provisions are unconstitutional or that they should be “read down” to exclude “state actors” who are required to carry firearms.

“The mandatory minimum has always been targeted towards those who choose to use a firearm to accomplish their criminal purpose,” writes Peter Brauti, lead counsel for the legal team representing the officer in written arguments filed recently with the court.

The Crown response will be filed before the May 16 hearing on the Charter challenge.

Forcillo, 32, is facing a mandatory minimum of at least four or five years in prison, depending on the interpretation of the attempted murder provision in the Criminal Code as it relates to the handgun he was required to carry on duty.

The officer shot and killed Yatim during a confrontation on a Toronto streetcar, just after midnight on July 27, 2013. An initial volley of three shots was fired by Forcillo.

Six seconds later, he fired a second burst of six shots. A pathologist determined that it was one of the first three shots that was the cause of death.

The officer was charged with second-degree murder and attempted murder, which related to the second volley of shots, five of which struck Yatim as he was lying on the floor of the streetcar and in the process of dying. A jury

acquitted the officer in January of second-degree murder and convicted him of attempted murder. The application filed by Forcillo to strike down the mandatory minimums states that they breach the Charter because they are overbroad and disproportionate, as well as cruel and unusual in terms of the required punishment. The provision could also result in unfair sentences being imposed against homeowners using excessive force against an intruder, or a victim of domestic violence who shoots her abusive husband a second time, mistakenly thinking he is about to rise and attack her, say Forcillo’s lawyers in the written submissions. “These reasonably foreseeable cases involving civilians would no doubt result in a grossly disproportionate sentence,” argues Brauti, a partner at Brauti Thorning Zibarras LLP in Toronto.

A Toronto defence lawyer who was part of a successful Supreme Court challenge to the mandatory minimums for illegal gun possession agrees there is an “overbreadth problem” with the attempted murder sentencing provisions. Michael Dineen says the section also captures lawful gun owners who make a mistake while acting in self-defence.

“It seems unlikely Parliament meant for this sentence to apply to licensed gun owners who are lawfully using their guns at the time they end up committing an offence in the course of a situation not of their own making,” says Dineen, a lawyer at Dawe Dineen in Toronto.

Faisal Mirza, a defence lawyer who acted for an intervener group in the handgun possession case at the Supreme Court, says there is a “high threshold” to show that a mandatory minimum is cruel and unusual.
“The end game is that they must convince the trial judge that he is not going to be able to impose a proportionate sentence,” says Mirza, a lawyer at Mirza Kwok in Toronto.

The Supreme Court upheld a four-year minimum for manslaughter in a 2008 decision involving an RCMP officer in Alberta who fatally shot a man during a jail cell struggle.

The circumstances of the Forcillo case, however, are unprecedented, his lawyers say. A minimum punishment of either four or five years in prison would violate s. 12 of the Charter based on what they argue is the low “moral culpability” of the officer. The acquittal on the second-degree murder charge means Forcillo was “fully justified” in using lethal force against Yatim in the first volley of shots.

“Intending to cause the death of one’s attacker is not morally wrong,” writes Brauti. The second volley, while found by the jury to be unlawful, “did not interfere with Mr. Yatim’s health or comfort in any way. It did not cause him any pain. The gravity of this offence is as close to nil as one can imagine an attempted murder ever being,” the defence lawyer adds.

If the mandatory minimum is found to be unconstitutional, Forcillo is also asking the court to strike down restrictions that would prohibit the imposition of a sentence of house arrest, for his attempted murder conviction.