James Forcillo v. Her Majesty the Queen
(Ontario) (Criminal) (By Leave)
Canadian charter (Criminal) - Cruel and unusual treatment or punishment (s. 12), Fundamental justice (s. 7), Criminal law, Sentencing, Elements of offence - Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Fundamental justice — Criminal law — Sentencing — Elements of offence — Mandatory minimum sentence— Following fatal shooting, police officer acquitted of second degree murder and convicted of attempted murder — Whether Crown required to prove attempt murder was based on discrete transaction in order to support different verdict on charge of second-degree — Additional protections against mandatory minimum sentences provided by s. 7 of Charter, beyond s. 12 of Charter — Whether mandatory minimum sentence of 5 years’ for attempted murder with a restricted or prohibited firearm violates s. 12 of Charter — Whether R. v. Ferguson, 2008 SCC 6, should be reconsidered?.
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On July 27, 2013, on a crowded streetcar in Toronto, Sammy Yatim exposed himself, threatened a woman and chased everyone off the streetcar with a knife. Officer Forcillo and his partner were the first responding officers. They approached with firearms drawn and took up a position about 10 feet from the streetcar door. They yelled at Mr. Yatim to put down the knife but he refused. He retreated into the streetcar but then stepped forward. Officer Forcillo shot him three times. One bullet proved fatal but Mr. Yatim did not die immediately. Mr. Yatim fell backwards onto the floor of the streetcar. He picked up his knife. Officer Forcillo later testified that he perceived Mr. Yatim raise himself to a 45 degree angle but video surveillance footage is not consistent with this perception. 5.5 seconds after the first shots, Officer Forcillo fired 6 more shots, five of which hit Mr. Yatim. None accelerated his death. Officer Forcillo was charged with second degree murder based on the first three shots and attempted murder based on the subsequent six shots. The defence argued justified force and self-defence. A jury acquitted Officer Forcillo of second degree murder and convicted him of attempted murder. The sentencing judge dismissed an application to declare the mandatory minimum sentence required by ss. 239(1)(a) and 239(1)(a.1) of the Criminal Code to be in violation of the Charter of Rights and Freedoms and sentenced Officer Forcillo to six years imprisonment. The Court of Appeal dismissed an appeal from the conviction and sentence.
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