Over the next two months, Superior Court Justice Edward Then will decide whether Const. James Forcillo should go to jail, and if so, for how long.

Recap

It is up to Then how to determine how much of a threat Sammy Yatim posed at the moment Forcillo fired the second set of shots, how seriously Yatim’s injuries caused by the shooting should be taken, what role Forcillo’s training played in his response to the situation, and what Forcillo’s actions mean to the public.

Over the five-day sentencing hearing, the narratives of the Crown and defence remained starkly different, despite the jury’s verdicts: not guilty of second-degree murder for the first three shots that killed 18-year-old Yatim, and guilty of attempted murder for the second volley of six shots, fired six seconds later while Yatim lay dying and paralyzed on the floor of the streetcar.

The Crown is asking that Forcillo, 33, be sentenced to between eight and 10 years in prison for an act of excessive violence towards a vulnerable and defenceless person in crisis.

It was Forcillo who was “partly the architect, creating the circumstances by not following his training,” Crown prosecutor Ian Bulmer said.

The defence position is that Forcillo overreacted after shooting someone for the first time, and that his actions should be viewed as “excessive self-defence.”

Forcillo’s lawyer is seeking to have the mandatory minimum sentence of five years overturned so Forcillo could receive a conditional sentence, or a suspended sentence, both of which would mean he avoids jail time.

In his submissions Thursday, Brauti asked the court to consider that Forcillo is a first-time offender who has no criminal record and no history of violence or bullying conduct. He also has been publicly vilified and will probably lose his job as a police officer — making it highly unlikely he’d ever be able to commit another offence like this, Brauti said.

A sentence that involves no jail time but onerous community service would be best way to make reparations, Brauti said.

“The best thing for Officer Forcillo, for example, would be to be contributing to, perhaps, better de-escalation and better police techniques that would reform training, so that that we don't end up with situations like this or close to this.”

The reference letters filed by friends and colleagues show him to be a caring, thoughtful person who always put others before himself, particularly his family, Brauti told the court.

(Bulmer said during the Crown submissions that none of the letters filed were from officers who patrolled with Forcillo and thus could speak to his conduct on the job.)

This high-profile case has also already made police officers re-evaluate their use of force, particularly lethal force, Brauti said.

They are thinking, “my God, I’m never going to put myself in the position of Forcillo,” Brauti said. “One worries whether it might have a chilling effect.”

Brauti argued that Then should find that Forcillo was motivated by fear when he shot Yatim a further six times. No other reasonable motive has been put forward, he said.

Justice Then asked what, then, he should make of Forcillo’s testimony that he spent the six seconds between the volleys of shots assessing the situation, as per his training, and determined Yatim to be an imminent threat.

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“It connotes some level of rational conduct,” said Justice Then. “The jury didn’t accept, arguably, that this was panic or fear … can we ignore what he said was motivating him? He applied his mind and training to the situation that he saw and he came to a conclusion.”

Brauti responded that the jury could have found Yatim was an imminent threat and that Forcillo just went too far in firing six shots, despite being in shock.

“How could they possibly accept that?” Justice Then asked. “How on the facts of this case could they have accepted it?”

Justice Then is expected to deliver his decision on July 29.