Forcillo seeks to avoid mandatory minimum prison sentence for death of Sammy Yatim

Lawyers for a Toronto police officer found guilty ofattempted murder in the shooting death of a troubled teen onanempty streetcar are asking a court to consider a sentence of housearrest for the man rather than time in prison.

Const. James Forcillo has filed a constitutional challenge to themandatory minimum sentence of four or five years that he faces inthe death of 18-year-old Sammy Yatim.

• James Forcillo guilty of attempted murder in streetcar shooting of Sammy Yatim

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In January, a jury acquitted Forcillo of second-degree murder,but found the officer guilty of attempted murder forcontinuing tofire after the dying teen had fallen to the floor.

The public outrage over the July 2013 incident which wascaptured on cellphone video that went viral prompted the city'spolice chief to launch a review of officers' use of force and theirresponse to emotionally disturbed people.

In documents filed with Ontario's Superior Court of Justice,Forcillo's lawyers argue that certain sections of the Criminal Codeinvolving the mandatory minimum sentence for attempted murder areunconstitutional and weren't meant to deal with cases likeForcillo's.

"Imposing a mandatory minimum sentence of five years'imprisonment in these circumstances is grossly disproportionate tothe moral culpability of this offender, his circumstances and thecircumstances of the offence," the submission said.

The lawyers also argued that Forcillo should not be facing thesame sentence as a bank robber who deliberately shoots at a tellerintending to kill her, or a husband who discharges a firearmintending to kill his wife who miraculouslysurvives, or a hitmanthat shoots at the intended victim but misses.

The mandatory minimum, they argue, was never intended to apply topeace officers who legitimately carry a gun at the behest of thestate in order to protect society.

"This is not about giving state actors special treatment. It isabout ensuring that, when we ask men or women to arm themselves toprotect the larger community, we will treat them justly and fairlywhen they make mistakes concerninghow they use force."

Forcillo was duty-bound to protect the public from aknife-wielding Yatim, trained to draw his gun and had been found tobe justified in killing Yatim, they said.

"The applicant believed he was acting lawfully," the submissionsaid. "There was no planned and deliberated killing. The moralculpability of the applicant in the circumstances of this case is atthe lowest end that can be reasonably contemplated for an attemptedmurder conviction."

The Crown is expected to file its own written submissions in thecase in the coming weeks.

Forcillo's constitutional challenge will be heard as part of hissentencing hearing in Toronto, which is set to begin in mid-May.