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Being a police officer an aggravating factor in Forcillo sentencing

The fact that James Forcillo is a police officer should be considered an aggravating factor when it comes to the court sentencing him for attempted murder in the shooting death of Sammy Yatim, says Toronto criminal lawyer Breese Davies.

“Unlike most citizens, police officers are trained to recognize the nuance between a threat to which lethal force can be applied and one that does not justify lethal force,” she tells AdvocateDaily.com

Davies says society expects police to know when they are justified and when they are not to use lethal force. 

“Police are authorized to carry loaded firearms. That comes with a heightened duty to use their firearm only when the circumstances justify it. When it is not justified, it is a breach of the trust the public places in the police to protect us,” she tells the online legal publication.

Davies points out that the Supreme Court of Canada upheld a four-year mandatory minimum for manslaughter with a firearm in a case involving a police shooting in 2008 in R. v. Ferguson[2008] 1 SCR 96.      

She says this implicit trust that society has in police officers goes to the heart of what they are paid to do: to protect society.

"Officers receive training so that they don’t use their guns in circumstances that don’t warrant it," she says. “When they get the calculation wrong, when they don’t attempt to de-escalate situations involving mentally ill people, that is an aggravating factor.”

Davies notes the jury’s verdict of guilty of attempted murder but not guilty of second-degree murder means that at some point between the first and second volley of shots, Forcillo’s conduct became unjustified and he had the intent to kill Yatim.

The Crown is asking for eight to 10 years. The defence is asking for a non-custodial sentence – a suspended sentence or a conditional sentence. Davies says it is uncommon that the defence and Crown would be so far apart on sentencing recommendations as in this case.

“The Crown is asking for a sentence at the high end of the range. The defence is asking for a sentence at the very low end of the range. The two sides are asking the judge to make very different findings based on the unusual verdict in this case," she says. 

Superior Court Justice Edward Then is expected to deliver his sentencing decision on July 29.

As well, she says that while this case raises serious concerns about police interactions with the mentally ill, she is not optimistic it will serve as a catalyst for change.

“These are very complicated issues,” she says. “This case has certainly raised awareness of how police interact with mentally ill people. Sadly, I am not confident things will change. I hope it will but there needs to be a willingness by everybody to actually make substantive changes. It would have to involve committing resources to mental health services. While the manner in which police interact with the mentally ill is important, there are bigger issues around how society treats people with mental illness in general and the services that are available to them.”

However, Davies says she is encouraged by the federal justice minister’s review of the criminal justice system.

“I certainly hope these issues will be part of that discussion,” she says.

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