background

[1] On March 4, 2016, Officer Forcillo applied to declare s.239(1)(a)(i) and (a.1) and certain subsections of s.742.1 of the Criminal Code unconstitutional and of no force and effect pursuant to s.53 of the Constitution Act. Officer Forcillo submits that the provisions are inconsistent with ss.12 and 7 of the Charter of Rights and Freedoms and cannot be saved by s.1 of the Charter.

[2] I have concluded that the mandatory minimum sentence of five years for the offence of attempted murder does not offend either s.12 or s.7 of the Charter and that I would impose a sentence of six years which is in excess of the mandatory minimum in any event in the particular circumstances of this case.

[3] On July 27, 2013, Police Constable Forcillo was on duty responding to an emergency call when he shot and killed Sammy Yatim who was brandishing a knife aboard a TTC streetcar.

[4] The Special Investigations Unit investigated the shooting death and on August 19, 2013, Officer Forcillo was charged with second degree murder, pursuant to s.235 of the Criminal Code and subsequently committed for trial on that charge. On July 30, 2014 the Crown added a second count of attempted murder under s.239 of the Criminal Code to the indictment arising from evidence at the preliminary inquiry.

[5] During the course of the encounter between Officer Forcillo and Mr. Yatim which lasted approximately 50 seconds, Officer Forcillo fired a volley of three shots which based on the medical evidence caused the death of Mr. Yatim. The first volley of shots was the subject of the second degree murder charge at trial.

[6] As a result of the first volley Mr. Yatim fell on his back onto the floor of the streetcar. Officer Forcillo assessed the situation for approximately six seconds and fired a further six rounds at Mr. Yatim causing serious injuries to his genital organs and his lower abdominal area. The second volley of six shots was the basis of the count of attempted murder at trial. The medical evidence indicated that given the mortal wounds from the first volley the wounds from the second volley did not contribute to the death or accelerate the death of Mr. Yatim. The evidence of Officer Forcillo and other police witnesses was that Mr. Yatim was alive during the second volley. However, the medical evidence indicated that Mr. Yatim had been paralyzed from one of the shots in the first volley which had shattered his spine and accordingly did not feel the impact of the shots in the second volley. Also, the medical evidence indicated that Mr. Yatim was in the process of dying during the second volley as one of the shots from the first volley had ruptured his heart. He expired within minutes of the second volley of shots.

[7] Officer Forcillo testified at his trial and relied on the defences provided by sections 25 and 34 of the Criminal Code.

[8] On January 25, 2016, the jury acquitted Officer Forcillo of second degree murder which is the subject of Count 1 and the first volley of shots but convicted Officer Forcillo of attempted murder charged in Count 2 which is the subject of the second volley of shots.

[9] Officer Forcillo stands to be sentenced with respect to his conviction for attempted murder in accordance with section 239(1)(a)(i) of the Criminal Code which provides for a mandatory term of imprisonment of five years in the following terms:

(1) Attempt to commit murder - Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

DOES THE MANDATORY MINIMUM SENTENCE IN THIS CASE INFRINGE S.12 OF THE CHARTER?

[10] Section 12 of the Charter states:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[11] The Supreme Court of Canada in Regina v. Lloyd 2016 SCC 13, 2016 S.C.C. 13 at paragraphs 22-24 has recently reiterated a long line of jurisprudence that holds that the test for whether a mandatory minimum sentence infringes s.12 of the Charter is whether the sentence is "grossly disproportionate" to what sentence would be appropriate to the case at hand, or otherwise, would be appropriate in the circumstances of a reasonable hypothetical case. In order for a sentence to be "grossly disproportionate" the Supreme Court has set a high bar as a punishment must be more than merely excessive or unfit but must be "so excessive as to outrage standards of decency" and be "abhorrent or intolerable" to society.

[12] In Lloyd, supra, the Court mandates a two-step analysis to determine whether a mandatory minimum sentence is disproportionate so as to violate s.12 of the Charter which is outlined at paragraph 23:

. . .First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

[13] In the first step, the trial court must determine what constitutes the general range or ("rough scale") of what a fit sentence would be in the circumstances of the case at hand or in a reasonable hypothetical case. At the second step, the trial court must determine whether the mandatory minimum sentence is grossly disproportionate to what would be an appropriate sentence in the circumstances at hand, or, otherwise, in the circumstances of reasonable hypothetical cases.

[14] Prior to engaging in this analysis it is useful to indicate that Officer Forcillo submits that an appropriate sentence in the circumstances of this case is a conditional sentence of two years less a day to be served in the community whereas the Crown submits that an appropriate sentence is a penitentiary term in the range of eight to ten years.

[15] The determination of the issue as to whether a minimum sentence of at least five years is justified as proportionate and appropriate for Officer Forcillo largely depends on the facts of the offence leading to the conviction as applied to the principles of sentencing.

[16] As McLaughlin C.J. points out in R. v. Ferguson, [2008] 15 C.R. 96 at paragraph 15 "the appropriateness of a sentence is a function of the purpose and principles of set sentencing set out in s.718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction". Accordingly, it is incumbent on the trial judge in evaluating the fitness of the sentence for Officer Forcillo to initially determine what the jury concluded as to the conduct of Officer Forcillo.

[17] It is useful to outline the principles that must inform this fact finding process as stated by the Chief Justice in Ferguson, supra, at paragraphs 16-18:

16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict [page 107] rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[18] In determining the facts essential to the respective verdicts the trial judge must have regard to the framing of the indictment and the instructions to the jury.

[19] In my view it is necessary to deal with the jury's findings briefly with respect to Count 1 in order to provide the appropriate context for its finding with respect to count 2.

[20] With respect to count 1, second degree murder, the intent for murder pursuant to s.229(a)(ii) of the Criminal Code was conceded by the defence and the defence of justification pursuant to s.25 of the Criminal Code as well as self-defence under s.34 was advanced. The verdict of acquittal is consistent with the finding by the jury that Officer Forcillo believed on reasonable grounds that it was necessary to use lethal force for the purpose of self-preservation from death or grievous bodily harm. In other words, the conduct of Mr. Yatim toward Officer Forcillo was such as to threaten death or grievous bodily harm and accordingly Officer Forcillo had reasonable grounds to believe it was necessary to shoot Mr. Yatim in order to preserve himself and those under his protection from death or grievous bodily harm.

[21] With respect to the count alleging the attempted murder in count 2 which refers to the second volley, the jury was instructed that it was required to find the specific intent required for murder under 229(a)(i), that the Crown was required to negative both the defence of justification under s.25 and self-defence under s.34 of the Criminal Code beyond a reasonable doubt and, as well, because of the reference to "bodily harm" in the wording of Count 2 to also prove that Mr. Yatim was alive during the second volley. Accordingly, by virtue of the conviction for attempted murder the jury must have found that at some point during the second volley Officer Forcillo did not believe on reasonable grounds that it was either necessary or reasonable to discharge his firearm with the intention or likelihood of causing death or bodily harm in order to preserve his life or those under his protection from death or grievous bodily harm. The jury must also have concluded that at that point that since the discharge of his firearm was no longer necessary or reasonable the force was excessive pursuant to section 26. Finally, the jury must also have found Officer Forcillo intended to kill Mr. Yatim who was alive.

[22] It should be noted that with respect to Count 2 the jury was instructed by way of a “rolled-up” charge on the issue of the specific intent for attempted murder as follows:

With respect to Count 2, the issue is simply whether Officer Forcillo had the specific intent to kill. If Officer Forcillo was acting in an unthinking, instinctive or impulsive manner or in circumstances of stress or fear, that might lead you to have a reasonable doubt about whether he had the specific intent to kill at that moment, if you have that doubt, you must find him not guilty of attempted murder.

[23] Having established the findings that the jury must have made as a result of their verdict in convicting Officer Forcillo of attempted murder it is my task to outline the relevant facts for sentencing purposes having in mind the direction of the Supreme Court in Ferguson, supra, referred to above.

[24] Initially, however, it is necessary to deal with the pivotal submission of the defence that, consistent with the jury's verdict on count 2, this court should find that Officer Forcillo was lawfully permitted to fire one or more of the initial rounds in the second volley and the implications of that finding with respect to sentencing for the conviction on count 2.

[25] The submission is contained at paragraph 23 of the Defence factum as follows:

Similarly, the verdicts are completely consistent with a finding that Officer Forcillo at all times believed that he was lawfully permitted to continue shooting, as he subjectively perceived that Mr. Yatim continued to pose an imminent threat of serious bodily harm or death. There is no evidence that can prove beyond a reasonable doubt that Officer Forcillo was lying when he explained the basis upon which he acted. In fact, it is not inconsistent with the jury verdict to find that Officer Forcillo was initially justified in starting a second volley when he observed Mr. Yatim re-arm himself with the knife and misperceived him appearing to be in the midst of getting up, and that the second volley became unreasonable and unnecessary only after the first couple of shots. The most reasonable and consistent interpretation of the conviction for attempted murder in light of the acquittal for second degree murder is that it was the continued firing of the weapon during the second volley after Officer Forcillo's grounds to use deadly force were no longer objectively reasonable or necessary that underlies the verdict of guilty on attempted murder.

[26] I reject the submission for reasons which I will develop. Initially it is necessary to delve briefly into the factual background of this submission. After the first volley, Mr. Yatim fell on his back on the streetcar platform. Officer Forcillo testified that he assessed the situation of Mr. Yatim for approximately six seconds applying his training to consider AIM, i.e. whether Mr. Yatim had the ability, the intent and the means to inflict death or grievous bodily harm. Officer Forcillo concluded that Mr. Yatim met these criteria and further that he was an imminent threat. The conclusion that Mr. Yatim was an imminent threat is important. As a result of his training Officer Forcillo knew the difference between a potential threat, as a threat that could happen and an imminent threat that was either ongoing or about to happen shortly into the future. He also knew from his training that if the subject was merely armed he constituted only a potential threat and that he was not to shoot. He was trained to shoot only if a person constituted an imminent threat.

[27] Officer Forcillo concluded Mr. Yatim was an imminent threat for three reasons.

[28] He observed that as a result of the first volley Mr. Yatim had lost possession of the knife but had rearmed himself by placing the knife with his left hand back into his right hand while lying on his back. Secondly, he observed that Mr. Yatim had an angry look on his face and thirdly, he observed that Mr. Yatim had risen to a 45 degree angle in the process of getting up in order to renew the attack.

[29] However, it is conceded that the video evidence of the second volley establishes beyond a reasonable doubt that prior to and throughout the second volley Mr. Yatim did not raise himself up to a 45 degree or attempt to regain his feet but that his back remained on the floor of the streetcar after the first volley and throughout the second volley of shot.

[30] This evidence is crucial as the defence asserts that Officer Forcillo misperceived Mr. Yatim appearing to be in the midst of getting up.

[31] The jury was instructed with respect to the application of mistake of fact with respect to both the defence of justification under s.25 and self-defence under 34. The defence submits that on the basis of the verdict it is impossible to determine if the jury found that Officer Forcillo notwithstanding his misperception initially had an honest belief that Mr. Yatim constituted an imminent threat and that accordingly the initial rounds of the second volley were reasonable and necessary but that the continued use of lethal force in subsequent rounds were no longer reasonable or necessary as such force had become excessive. On the other hand, it is also impossible to determine whether the jury found that Officer Forcillo did not believe that Mr. Yatim was attempting to get up and accordingly did not have an honest and reasonable belief that Mr. Yatim was an imminent threat in which case none of the shots in the second volley were reasonable or necessary. Accordingly it falls to me to make the requisite findings of fact.

[32] For the purpose of sentencing I am satisfied beyond a reasonable doubt that Officer Forcillo did not misperceive Mr. Yatim raising himself to a 45 degree angle attempting thereby to get up to continue the attack. It follows from this finding, that given the evidence of Officer Forcillo which is consistent with his decision to shoot was based solely on his observation that Mr. Yatim had rearmed himself. However, based on Officer Forcillo’s training that observation is consistent only with Mr. Yatim being a potential threat in which case he was trained not to shoot. I am satisfied beyond a reasonable doubt that prior to and during the second volley that based on all the evidence Mr. Yatim’s conduct was consistent only with him being a potential threat and not an imminent threat.

[33] The defence submits that there is no evidence that can prove beyond a reasonable doubt that Officer Forcillo was lying when he explained the basis upon which he acted. It is entirely possible that Officer Forcillo over time has come to believe that he misperceived the actions of Mr. Yatim. However, the video is powerful evidence that demonstrates conclusively that what Officer Forcillo says occurred did not occur. Moreover, the misperception is inconsistent with the focused observations by Officer Forcillo of Mr. Yatim rearming himself with the knife and of his facial expression and indeed also inconsistent with the minute and detailed observations made by Officer Forcillo of Mr. Yatim’s facial expressions, demeanour and actions which led him to conclude that Mr. Yatim was an imminent threat prior to the first volley. While I accept that stress can interfere with perception Officer Forcillo did not testify his misperception was a product of adrenaline flow, panic or stress but rather due to the elevated location of the body on the streetcar platform as well as the lights and sirens from the police cruises. Finally, the evidence of Dr. Miller does not assist Officer Forcillo. Dr. Miller testified that in critical stress situations some police officers may or may not perceive a threat to be greater than it actually is by a process of priming and magnification. If once exposed to actual stress situation a subsequent exposure to a similar stress situation may “prime” the officer to regard the nature of the threat as greater than it actually is (magnification).

[34] Dr. Miller also testified that he did not examine Officer Forcillo so he was unable to testify as to whether this process applied to him. Most significantly, Dr. Miller did not testify that the phenomenon of priming and magnification can induce hallucinations so that a police officer can see things that do not exist.

[35] To summarize, I find as a fact, beyond a reasonable doubt and based on all of the evidence that Officer Forcillo did not misperceive that Mr. Yatim raised himself 45 degrees in order to stand up to renew the attack but based his decision that Mr. Yatim was an imminent threat and thereby his decision to commence to fire the second volley on his observation that Mr. Yatim had rearmed himself with the knife and not on any observation that he rose to a 45 degree angle in the process of getting to his feet. I find as a fact beyond a reasonable doubt that Officer Forcillo knew from his training that Mr. Yatim in rearming himself was only a potential threat and accordingly I conclude that Officer Forcillo shot Mr. Yatim precipitously contrary to his training at the commencement of the second volley and throughout the second volley. It follows from this that in the absence of a mistaken belief that Mr. Yatim constituted an imminent threat all of the shots in the second volley were not only contrary to his training, but unreasonable, unnecessary and excessive. In my view, this conclusion is consistent with the jury’s verdict and their necessary findings of fact that at some point, the shots in the second volley were unreasonable, unnecessary and excessive.

[36] Having dealt with the significant issue concerning which of the shots in the second volley are relevant for sentencing purposes I adopt the following version of events for sentencing purposes:

Officer Forcillo and his partner, Officer Fleckheisen, were the first responding officers to a “hotshot” call indicating that a man on the streetcar was armed with a knife. No injuries were reported.
Upon arrival Officer Forcillo exited his vehicle and drew his firearm. He was directed by a bystander to the streetcar where Mr. Yatim was standing between the open doors on the platform of the streetcar.
Officer Forcillo advanced toward Mr. Yatim with his firearm in the shooting position pointing at Mr. Yatim who was brandishing a knife with a four inch blade.
Just prior to assuming his position 10 feet directly in front of Mr. Yatim Officer Forcillo ordered him to “Drop the knife, Drop the knife, Drop the fucking knife.” Mr. Yatim responded by hurling insults to the effect of “You’re a pussy, you’re a fucking pussy.” Officer Forcillo issued several more commands to drop the knife to which Mr. Yatim did not comply. Officer Fleckheisen holstered her weapon. Officer Kim arrived to assist Officer Forcillo and stood beside him with his weapon drawn pointed at Mr. Yatim.
As a result of his observations of Mr. Yatim’s conduct Officer Forcillo formed the view that Mr. Yatim was a person in crisis as a result of drugs or mental illness and requested Officer Fleckheisen to call for a taser.
Although Officer Forcillo understood that verbal de-escalation was an effective tool in dealing with persons in crisis he decided not to utilize it because Mr. Yatim had not responded when Officer Fleckheisen attempted to engage Mr. Yatim in conversation concerning the possible presence of passengers.
With the arrival of Officer Kim, Mr. Yatim began to retreat from the front of the platform into the area of the front passenger seats as Mr. Yatim backed up.
Officer Forcillo issued the following warning “If you take one step closer I will shoot you, I’m telling you right now.”
Mr. Yatim remained in his position off the platform for at least seven seconds during which period Officer Forcillo did not attempt to communicate with him but during which he observed Mr. Yatim appearing to be making a decision with an angry look on his face and then take a step back onto the platform causing Officer Forcillo to believe that an attack was imminent.
Officer Forcillo issued two further commands, “Don’t move” and “Drop it” but Mr. Yatim responded by saying “No”.
Officer Forcillo determined lethal force was justified and reasonably necessary and fired a volley of three shots from the Glock firearm containing 15 hollow point bullets which had been issued to him as a police officer. All three shots inflicted serious wounds to Mr. Yatim’s arm, heart and spine. He aimed center mass as he was trained to do to stop the threat. Counsel conceded that in doing so he had the intent specified in s.229(a)(ii) of the Criminal Code.
After the first volley of shots Mr. Yatim fell backwards onto his back onto the platform of the streetcar. He was mortally wounded and paralyzed below the waist. Even though Officer Forcillo knew that Mr. Yatim had been hit by one or more of the shots he did not know the extent of Mr. Yatim’s injuries.
During the ensuing six seconds he assessed the conduct of Mr. Yatim in accordance with his training and fired the second volley of six shots. I find as a fact beyond a reasonable doubt that at this time Mr. Yatim was contained within the streetcar, that Officer Forcillo was accompanied by Officer Kim who was armed but did not shoot and that Officer Forcillo knew that other officers were on scene but did not know how many.
Based on the video which proves conclusively that Mr. Yatim made no attempt to get to his feet to renew the attack and based on all of the evidence I have found as a fact beyond a reasonable doubt that Officer Forcillo was not under a misperception that Mr. Yatim was attempting to get to his feet by raising himself 45 degrees to renew the attack.
Taking into account the evidence of Officer Forcillo, which is consistent with the video and all of the evidence, I find beyond a reasonable doubt that Officer Forcillo based his decision that Mr. Yatim was an imminent threat and thereby his decision to commence to fire the second volley on his observation that Mr. Yatim had rearmed himself with the knife and not as he testified on any observation that Mr. Yatim rose to a 45 degree angle in the process of getting to his feet. I find as a fact beyond a reasonable doubt that Officer Forcillo knew from his training that Mr. Yatim in rearming himself was only a potential threat. Accordingly, I conclude Officer Forcillo shot Mr. Yatim precipitously contrary to his training at the commencement of the second volley and throughout the second volley.
At no time prior to the second volley did Officer Forcillo attempt to communicate with Mr. Yatim notwithstanding that he had obviously been injured by the first volley. Officer Forcillo explained his failure to do so by virtue of his preoccupation with his assessment of Mr. Yatim’s conduct while he lay on the ground. Given that I have found that there was no misperception of Mr. Yatim raising himself to precipitate an attack there was ample opportunity for Officer Forcillo to communicate with Mr. Yatim by engaging in verbal de-escalation or to issue commands in accordance with his training in order to induce Mr. Yatim to relinquish the knife. No such opportunity was afforded to Mr. Yatim. Indeed, in this regard the actions of Officer Forcillo prior to the first volley stand in marked contrast to his actions prior to the second volley. During the first volley, notwithstanding that he was engaged in an assessment of Mr. Yatim’s conduct while Mr. Yatim was actually advancing toward him he extended an opportunity to Mr. Yatim to comply by commanding him to not move and drop the knife.

[37] I return now to the issues whether the mandatory minimum sentence of the five years for attempted murder with a restricted firearm is grossly disproportionate from the perspective of Officer Forcillo.

[38] In Regina v. Nur (2013) 2013 ONCA 677, 303 C.C.C. (3d) 474 Doherty J.A. has identified the factors relevant from the jurisprudence of the Supreme Court that are to be considered in the disproportionality analysis at paragraph 78:

the gravity of the offence;
the personal characteristics of the offender;
the particular circumstances of the case;
the actual effect of the punishment on the individual;
the penological goals and sentencing principles reflected in the challenged minimum sentence;
the existence of valid, effective alternatives to the mandatory minimum;
a comparison of punishments imposed for other similar crimes.

[39] The application of these factors is subject to the proviso stated by Lamer C.J.C. in R. v. Latimer, [2001] 1 S.C.R. at paragraph 75:

... not all of these matters will be relevant to the analysis and none of these standing alone will be decisive to a determination of gross disproportionality.

a) The Gravity of the Offence

[40] As pointed out by Doherty J.A. in Nur, supra, at paragraph 81 to 83 the seriousness of the crime will depend on the degree of moral culpability and the harm targeted by the elements of the crime:

The gravity of the offence is measured by reference to the essential elements of the offence that the Crown must prove to establish guilt and not by the circumstances surrounding the commission of the offence in the particular case before the court. The particularized factors are separately addressed in the s. 12 analysis. For the purpose of measuring the gravity of the offence, a more generic approach to the offence is taken.

It cannot be gainsaid that all crime is serious. In describing the gravity of a particular crime, however, one necessarily speaks in relative terms and by reference to the seriousness of other crimes, particularly related crimes. When speaking of firearm-related offences, the seriousness inquiry, while acknowledging the inherent danger of all firearms, must go beyond that level of generality to the specifics of the offence as described in the offence-creating provision.

The seriousness of a crime is the product of the harm targeted by the elements of the crime and the moral culpability required to establish guilt for the crime. The greater the harm and the higher the moral culpability, the more serious the crime.

[41] In line with the principles outlined by Doherty J.A. in Nur, supra, Trotter J. in R. v. Ljeskovica, 2008 CanLII 63569 (ON SC), [2008] O.J. No. 4935 (S.Ct.J.) has accurately captured the proposition that the offence of attempted murder is one of the most serious crimes known to law and will inevitably attract a lengthy penitentiary term because of the extremely high level of moral blameworthiness of the mens rea component of attempted murder. However, subject to the harm or consequence of the actus reus the ultimate sentencing disposition will not depend on that factor alone. At paragraphs 14 to 16 he states:

Attempted murder is one of most serious offences known to our law. Historically, the Courts have often imposed sentences for attempted murder that are more severe than cases of manslaughter. This is due to the singular importance that the law ascribes to a person's intention to kill another human being. This point was emphasized by Chief Justice Lamer in Regina v. Logan (1990), 1990 CanLII 84 (SCC), 58 C.C.C. (3d) 391 (S.C.C.), a case that concerned the constitutionality of the fault requirement for attempted murder. In justifying the requirement of a subjective standard, comparable to that required for murder (see Regina v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633), the Chief Justice stated at pp. 399-400:

Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer".

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

More recently, and in the context of sentencing, Doherty J.A. expressed a similar view in Regina v. McArthur (2004), 2004 CanLII 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), at p. 241:

Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term.

Even with this prescription in mind, there is still a wide range of sentences for attempted murder. The intent to kill is the only fixed value in these cases; there are many other variables that must be considered in determining the appropriate sentence. Attempted murder cases span from those where no injury is caused to the victim (i.e., the bullet that misses the target or the gun that malfunctions), to those where the injuries are grave and long lasting. For instance, see the shocking case of Regina v. MD., [2005] O.J. No. 2541 (S.C.J.), in which both of the victim's hands were severed by a machete. Similarly, some attempted murder cases follow complex planning and deliberation (see Regina v. Denkers (1994), 1994 CanLII 2660 (ON CA), 69 O.A.C. 391 and Regina v. Schroeder, [2004] O.J. No. 6231 (S.C.J.)), while others are more impulsive.

[42] It should be noted that in Ljeskovica Trotter J. imposed a sentence of eight years in circumstances where the victim was wounded with a knife during an argument, was hospitalized for four days and made virtually a complete recovery.

[43] The Defence in its submission accepts that attempted murder while using a firearm will in the vast majority of cases attract significant penitentiary sentences given the seriousness of the offence but submits that in the unique circumstances of this case the moral blameworthiness of Officer Forcillo is very low and that the consequence to Mr. Yatim was minimal.

b) The Particular Circumstances of the Offence

[44] With respect to the issue of moral blameworthiness the defence submits that his moral responsibility lies at the lowest end of the spectrum. As outlined above the position of the defence is that Officer Forcillo was justified in commencing to fire the second volley based on his mistaken but reasonable belief that Mr. Yatim constituted an imminent threat. According to the defence the conviction is based on the theory that at some point in time as he continued to fire the second volley Officer Forcillo made a serious error of judgments. He should have recognized that Mr. Yatim was no longer an imminent threat and that accordingly, his continued firing of the second volley was unlawful because it was excessive. I have found beyond a reasonable doubt that no misperception occurred. Accordingly, on the facts of this case there is no subjective or objective basis to support Officer Forcillo’s belief that Mr. Yatim was an imminent threat. Rather by re-arming himself Mr. Yatim became only a potential threat. Officer Forcillo knew from his training that he was not allowed to shoot in circumstances of a potential threat. It follows that the shooting of Mr. Yatim was unnecessary and unreasonable and excessive from the outset of the second volley.

What are the implication of this finding on the issue of moral blameworthiness?

[45] Officer Forcillo was trained that the fundamental principle in the execution of his duties as a police officer and in particular in the case of this firearm was the preservation of life which included his own, that of the members of the public and also that of the perpetrator. In that context the use of deadly force was to be the means of last resort to be exercised only in the face of the imminent threat of death or grievous bodily harm. While it must be recognized that the distinction between potential threat and imminent threat may be blurred by fear, panic or stress inherent in critical situations that is not what occurred in this case.

[46] This is rather a case where contrary to his training Officer Forcillo shot Mr. Yatim who was only a potential threat. In my view, the precipitous shooting of Mr. Yatim contrary to Officer Forcillo’s training constitutes a fundamental failure to understand his duty to preserve all life and not just his own. While the conduct of Officer Forcillo does not rise to the level of moral blameworthiness for conduct that is malicious or planned and deliberate or in furtherance of other criminal activity, his conduct leading to his conviction on count coupled with the intent to kill constitutes a significant level of moral blameworthiness.

[47] The defence also submits that the gravity of the offence is significantly attenuated by the unique circumstances surrounding the consequences to Mr. Yatim of the shooting.

[48] The defence submits that the consequences or harm to Mr. Yatim were minimal for essentially two reasons. First, it is submitted that notwithstanding that the shots to Mr. Yatim’s genital organs, his bladder and abdominal area caused serious injury that would have required surgery to preserve life, the injuries did not accelerate or contribute to his death because death was both inevitable and rapid as a result of the first volley of shots.

[49] In my view this submission is irrelevant to sentencing with respect to the second volley. Death was caused by the first volley. That the injuries did not contribute to the death is no reflection on the nature or seriousness of the injuries but simply reflect the medical opinion that death was inevitable as a result of the devastating injuries suffered by Mr. Yatim in the first volley.

[50] Similarly, that the injuries did not accelerate the death caused by the first volley does not reflect on the nature and seriousness of the injuries but speak only to the fact that the second volley played no role in the cause of death.

[51] Secondly, it is submitted that notwithstanding the seriousness of the injuries, because Mr. Yatim was paralyzed from the waist down, there was no actual harm to Mr. Yatim as there was no measureable impact on his well-being as he did not suffer any pain when hit nor into the future.

[52] I agree that a sentence for attempted murder will vary in length along a spectrum which focuses on the nature and duration of actual harm as opposed to intended harm.

[53] The fact that even though conscious Mr. Yatim could not feel the impact of the second volley or endure long term consequences does not remove the concept of harm from consideration in sentencing in the circumstances of this case. Mr. Yatim retained very serious injuries as a result of the second volley and accordingly there was in fact serious actual harm. That Mr. Yatim did not feel the impact of the bullets nor endured serious surgical intervention is due solely to the fortuitous circumstance that the first volley rendered him a paraplegic and resulted in his rapid death. But for fortuitous circumstances, the injuries to Mr. Yatim would have been a very significant factor in assessing the gravity of the offence. In my view, it is nevertheless permissible to assign some weight to the serious injuries suffered by Mr. Yatim in considering the gravity of the offence. This is not a case where the accused intended to kill the victim by firing six shots and missed. As noted by Simmons J.A. in R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 at paragraph 23:

[23] First, while it is true that the complainant did not suffer any physical injuries, in the context of an attempted murder, the absence of physical injuries is a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate.

c) Personal Characteristics

[54] The personal characteristics of Officer Forcillo are positive and of considerable relevance to the determination of whether the mandatory minimum is grossly disproportionate with respect to Officer Forcillo. He has pursued his goal to become a police officer with determination and has overcome obstacles relating to the care of his parents and economic circumstances to attain his goal. He was a police officer for three and one half years at the time of the offence. The character reference letters describe him as a family man devoted to his wife and daughters. He is described by his relatives, neighbours and friends as thoughtful, caring, prepared to assist others and not prone to violent behavior. He has no criminal record. While the offence occurred during the execution of his duties as a police officer neither the Crown nor the defence introduced evidence as the personal characteristics which Officer Forcillo brought to bear in the execution of those duties. There is evidence on the record that Officer Forcillo has drawn his firearm 12 times in the course of his three and one half year career as a police officer in circumstances where confronted with a prohibited weapon. This is the first time Officer Forcillo has had occasion to fire his firearm as compliance was achieved on the other occasions. There is no evidence on the record as to the nature of any communications that produced compliance on those occasions.

d) Effect on Officer Forcillo

[55] The defence submits that the effect of incarceration for the mandatory minimum constitute disproportionate punishment for Officer Forcillo as he will be required to serve his sentence in protective custody with its attendant restrictions. Protective custody for police officers has been recognized by the courts as a mitigating factor. In R. v. Cook (2010), ONSC 5016 at paragraph 43 Hill J. stated:

Because an inmate who is known to be, or discoverable as, a former police officer is at risk from general population prisoners, such an offender will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment.

(See also R. v. Rudge 2014 ONSC 241 at paragraph 23)

[56] The defence does not seek a discount based on a formula such as for pre-trial custody but a recognition by this court that time spent in custody for Officer Forcillo will be more difficult than for the ordinary inmate. I agree that this is a significant factor in evaluating disproportionality with respect to Officer Forcillo.

e) Penological Goals and Sentencing Principles

[57] On this issue I can do no better than to adopt the approach taken by Doherty J.A. in R. v. Nur, supra, where at paragraphs 101-103 he stated:

101 The gross disproportionality analysis must also examine the rationale for the minimum sentence and its justification under recognized sentencing principles. As explained in Morrisey, at paras. 43-48, the constitutionality of a minimum sentence cannot be determined by reference to any single sentencing principle. In considering the four-year minimum penalty for the offence of criminal negligence causing death with a fire arm, Gonthier J. said, at para. 46:

I am convinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence, denunciation, and retributive justice more than the principles of rehabilitation and specific deterrence. In other words, the punishment is acceptable under s. 12 while having a strong and salutary effect of general deterrence.

102 I understand Gonthier J. to mean that minimum sentences that stress denunciation and general deterrence over other sentencing goals are not thereby rendered unconstitutional. It is equally true, however, that sentences that are said to be justified by those same principles do not automatically pass constitutional review: Smith, at pp. 1073-74.

103 A consideration of a mandatory minimum sentence in light of generally accepted theories of punishment and sentencing principles including proportionality inevitably drives one back to the gravity of the offence. Thus, in Morrisey, a strong emphasis on the principles of general deterrence, denunciation, and retribution as reflected in a four-year minimum sentence was justified in light of the seriousness of the offence of criminal negligence causing death. A four-year mandatory minimum for an offence that did not involve the same level of harm or did not have a blameworthiness requirement, while no doubt reflecting the same principles of deterrence, denunciation, and retribution, would likely not survive as s. 12 analysis.

[58] In assessing whether that mandatory minimum sentence of five years is appropriate with respect to Officer Forcillo the defence submits that while the sentencing for an offence such as attempted murder will generally emphasize denunciation and deterrence this is the unique case where rehabilitation should be the governing principle given Officer Forcillo’s personal characteristics and the low blameworthiness and the low gravity of the offence in the circumstances. I respectfully disagree with this submission for reasons stated above. Given the personal characteristics of Officer Forcillo rehabilitation is not required.

[59] The defence submits that with regard to general deterrence the quantum of sentence imposed on Officer Forcillo will not convey the deterrent message to other police officers but rather it is the prospect of being charged if he fails to lawfully discharge his firearm. While there is some force to this submission, the quantum of sentence will also serve to emphasize to other police officers that in executing their duties with respect to the discharge of their weapons that they do so only as a last resort in accordance with their training and only if justified within the provisions of ss.25 and 26 of the Criminal Code and not as their first and only option.

[60] The defence also submits that what is also unique to this case is the disproportionate and negative publicity which this case has garnered with respect to the role of Officer Forcillo in the incident, the evidence at trial and his conviction. The imposition of a mandatory minimum sentence will not enhance the goals of either general or specific deterrence as those goals have already been achieved in the circumstances of this case. While these considerations will be taken into account in the imposition of a fit sentence, the amount of publicity does not by itself render a mandatory minimum sentence grossly disproportionate as ultimately the primary focus must be on the gravity of the offence and moral blameworthiness of Officer Forcillo.

f) A Comparison of Punishments Imposed for Other Similar Crimes

[61] The Crown relies on the decision of Regina v. Tan, 2008 ONCA 574, [2008] O.J. No. 3044 in which a range of six years to life was identified as appropriate for the offence of attempted murder. The defence concedes that the vast majority of cases of attempted murder will fall within that range but has addressed cases where in the light of exceptional facts the range for attempted murder has been held to be two years less one day to life and indeed one case where a conditional sentence of two years less one day was imposed (See: R. v. Cope, 1987 CanLII 4729 (SK CA), [1987] S.J. No. 357(C.A.).

[62] The defence, in my view, correctly submits that the plethora of cases submitted do not specifically assist in the determination of an appropriate sentence for Officer Forcillo given the unique and exceptional facts of this case. While both counsel for the defence and the Crown have provided numerous authorities pertaining to sentences imposed and upheld by appellate courts for the offence of attempted murder none of the cases in my opinion offers any helpful precedent for an assessment of whether a mandatory minimum sentence of five years is grossly disproportionate except that of the Supreme Court in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.

[63] In Ferguson, supra, as in this case a police officer was charged with second degree murder while in the execution of his duty as a police officer. After trial Ferguson was convicted of the lesser and included offence of manslaughter and sentenced to a conditional sentence of two years less a day notwithstanding the mandatory minimum sentence of four years mandated by s.236(a) of the Criminal Code for use of a firearm in the commission of the offence of manslaughter. However, the Supreme Court concluded that on the basis of the facts of that case the mandatory minimum sentence of four years did not amount to cruel and unusual punishment under s.12 of the Charter.

[64] Those facts can be summarized as follows. After arresting the deceased Officer Ferguson escorted him into the cells. He testified that the deceased attacked him when he entered the cell pulling his bulletproof vest over his head and face and grabbing his firearm from his holster. Officer Ferguson fired twice. The first shot wounded the deceased in the stomach. After approximately three seconds elapsed the second shot struck the deceased in the head causing his death. Officer Ferguson testified at trial that when both shots went off they were both struggling for the gun. However, in an earlier statement Officer Ferguson said he had acquired control of the gun when each of the shots were fired. This statement was accepted by the trial judge for sentencing purposes.

[65] The Supreme Court found that the trial judge had properly concluded that in order to reach its verdict the jury must have rejected self-defence and the intent for murder. However in imposing sentence the trial judge went on to find that the first shot had been in self-defence and then inferred from that finding that the second shot had been instinctive and a product of his training. The Supreme Court rejected these findings as they were inconsistent with the jury’s verdict and also speculative as they were not supported by the evidence. As these unwarranted findings formed the basis of the trial judge’s conclusions that the mandatory minimum sentence was inappropriate, the Supreme Court found that once the findings were set aside there was no basis to conclude that the mandatory minimum punishment was inappropriate. At paragraph 28 the Chief Justice expressed her conclusions as follows:

...The trial judge recognized as aggravating factors that Constable Ferguson was well trained in the use of firearms and stood in a position of trust with respect to Mr. Varley, and correctly noted that the standard of care was higher than would be expected of a normal citizen. By way of mitigation, the trial judge noted that Constable Ferguson's actions were not planned, that Mr. Varley initiated the altercation in the cell, that Constable Ferguson had little time to consider his response, and that his instincts and training played a role in the shooting. The mitigating factors are insufficient to make a four-year sentence grossly disproportionate. The absence of planning, the apparent fact that Mr. Varley initiated the altercation in the cell, and the fact that Constable Ferguson did not have much time to consider his response, are more than offset by the position of trust Constable Ferguson held and by the fact that he had been trained to respond appropriately to the common situation of resistance by a detained person. I agree with the Court of Appeal that the mitigating factors do not reduce Constable Ferguson's moral culpability to the extent that the mandatory minimum sentence is grossly disproportionate in his case.

[66] The defence submits that Ferguson does not provide a complete answer to the circumstances in this case as the case is distinguishable on a number of significant points.

[67] First, it is submitted that because Officer Ferguson caused death the gravity of his crime is far greater than that of Officer Forcillo notwithstanding that Mr. Yatim suffered very serious wounds as a result of the second volley. The defence acknowledges that the gravity of the offence is generally measured by the moral blameworthiness of the intent of the perpetrator in combination with the harm which results from consequences of his conduct.

[68] While death no doubt is the most serious consequence, in this case the injuries suffered by Mr. Yatim constituted actual serious harm requiring major surgical intervention and cannot be dismissed either because they were not felt or because they did not endure as a fortunate result of Officer Forcillo’s first volley.

[69] On the other hand, the moral blameworthiness of the intent to kill given the jury’s rejection of justification and self-defence pursuant to ss.25 and 34(2) of the Criminal Code respectively constitute the highest level of moral culpability under the criminal law. In my view, on balance the gravity of the offence is at a considerably higher level than that in Ferguson.

[70] The defence submit that it is significant that in Ferguson the deceased was unarmed and that Officer Ferguson had full control over his weapon. In this case it is submitted that prior to and during second volley Mr. Yatim had re-armed himself with a knife and remained at least a potential threat throughout the second volley. It must be recalled that in Ferguson the deceased was involved in an active physical struggle with Officer Ferguson who was alone with him in the cell, whereas in this case Mr. Yatim was lying on the ground visibly wounded by at least one shot and that Officer Forcillo was backed up by a number of officers one of whom was armed. Moreover, by virtue of his training Officer Forcillo knew that he could shoot Mr. Yatim if he was only a potential threat.

[71] The defence would seek to draw an analogy between the first and second shot in Ferguson to the first and second volley in this case. It is submitted that as the jury must have found that Officer Forcillo fired the first volley in self-defence consistent with the acquittal for murder it is available to infer that that mindset continued into the second volley despite the six second interval at least to the extent of the initial shots in the second volley. In my view that theory is not consistent with the facts. In the first volley it was the position of Officer Forcillo that he shot Mr. Yatim on the basis that he was an imminent threat based on his aggressive behaviour and facial features coupled with the fact that he advanced toward him despite a warning that he would be shot if he did so and continued to advance despite being told to drop the knife and not to move. The decision to commence the second volley was taken on an entirely different basis in the interval of six seconds after Officer Forcillo assessed the conduct of Mr. Yatim as he was lying wounded on the floor of the streetcar. Officer Forcillo testified that he formed his decision to shoot on the basis that he was an imminent threat as he observed Mr. Yatim re-arm himself and that he misperceived Mr. Yatim to begin to rise to continue the attack. As I have found that Officer Forcillo did not misperceive Mr. Yatim to begin to rise, there was no evidentiary basis for Officer Forcillo to consider Mr. Yatim an imminent threat nor any justification for Officer Forcillo to fire any of the rounds of the second volley in mistaken self-defence.

[72] The Crown submits that it is significant that the court in Ferguson did not advert to the factor identified in R. v. Morrisey by Arbour J. in dissent, namely, that police officers are obliged to engage persons who commit crimes and to carry restricted weapons and hollow point bullets as a factor in mitigation. I agree with the submission of the Crown. While in certain circumstances the appropriation of a firearm by a member of the public may be an aggravating factor, the improper and unlawful use of a firearm was recognized as an aggravating factor by the trial judge in Ferguson and affirmed by the Supreme Court on the basis that police officers are well trained in the appropriate and lawful use of firearms and stood in a position of trust. The issue is not that police officers are provided with a firearm but whether they properly employ it pursuant to their training. In my view the unlawful use of the firearm in the face of his training is a significant aggravating factor as his training was crystal clear that he firearm be used only as a last resort to repel an imminent threat which I have found did not obtain in this case.

[73] The Crown submits that Ferguson posits that breach of trust is also a significant factor in supporting the mandatory minimum sentence in that case and equally in this case.

[74] The Crown submits that this case involves a grave breach of trust in which lethal force was used repeatedly against a person who was not an imminent threat. I agree that such abuse of authority undermines the public’s confidence in the integrity and professionalism of the police and ultimately in our system of justice and is a significant aggravating factor. This point was firmly made in Regina v. Schertzer (2015), 2015 ONCA 259, 325 C.C.C. (3d) 202 (Ont. C.A.) at paragraphs 133 and 136:

Police officers are sworn to uphold the law. In R. v. Feeney, 2008 ONCA 756, 238 C.C.C. (3d) 49, at para. 8, this court endorsed the following passage from R. v. Cusack (1978), 1978 CanLII 2283 (NS CA), 41 C.C.C. (2d) 289 (N.S. S.C.(A.D.)):

[T]he paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust...

The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration... [emphasis added]

When the perpetrators of the crime are police officers sworn to uphold the law, the objective of denunciation has heightened significance. Police officers owe a special duty to be faithful to the justice system.

[75] The Crown submits that as in Ferguson the standard of care for Officer Forcillo was higher than would be expected of a normal citizen and that he failed to respond appropriately although trained to do so with respect to the common situation of resistance to arrest. I agree with this submission. Officer Forcillo was not only trained in verbal de-escalation as an alternative response to the use of lethal force or at a minimum to engage in some form of communication in order to persuade Mr. Yatim to relinquish his weapon in particular when Mr. Yatim was only a potential threat. In my view he failed in his duty to Mr. Yatim to give him an opportunity to comply in circumstances where Mr. Yatim was merely a potential threat and lying wounded on the ground. These alternatives were not available to Officer Ferguson who was involved in an active physical struggle.

[76] In Ferguson the Chief Justice considered that the short length of time for Officer Ferguson to consider his response to the victim's conduct was a mitigating factor. In this case, however, the length of time to respond was determined not by the conduct of Mr. Yatim but by Officer Forcillo's assessment that Mr. Yatim was an imminent threat contrary to his training, as I have sought to explain.

[77] As for other mitigating factors identified by the Chief Justice in Ferguson I agree that the absence of planning, the fact that by his behaviour Mr. Yatim initiated the incident as well as the stress that would commonly accompany the situation in which Officer Forcillo found himself are all factors that should be viewed as mitigation. Nevertheless, as the Chief Justice found in Ferguson I find that the aggravating factors more than offset the mitigating factors.

[78] In my view, having regard to the facts of this case and to both the aggravating and mitigating factors as well as the principles of sentencing, and in particular to the high level of moral culpability of Officer Forcillo, the imposition of the mandatory minimum sentence of five years is not grossly disproportionate in the circumstances of this case with respect to Officer Forcillo.

reasonable hypotheticals

[79] It is now necessary to enter the second stage of the inquiry and to determine whether the imposition of the mandatory minimum sentence is inappropriate with respect to a reasonable hypothetical or foreseeable persons other than Officer Forcillo.

[80] In Nur, supra, the Supreme Court has provided guidance both as to the content of reasonable hypotheticals as well as how trial judges ought to utilize reasonable hypotheticals to determine if a minimum mandatory sentence is grossly disproportionate if imposed on persons other than the accused.

[81] At paragraph 57 the Chief Justice states:

57 Unfortunately, the word "hypothetical" has overwhelmed the word "reasonable" in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples' situations, resulting in a violation of s.12. The terminology of "reasonable hypothetical" may be helpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. At its core, the process is simply an application of well established principles of legal and constitutional interpretation.

[82] At paragraphs 61-62 the Chief Justice continues:

61 To be sure, the language of "reasonable hypotheticals" in the context of mandatory minimum sentences and the exaggerated debate that has surrounded the term has led some to fear that the potential for finding a law inconsistent with the Charter is limited only by the bounds of a particular judge's imagination. This fear is misplaced. Determining the reasonable reach of a law is essentially a question of statutory interpretation. At bottom, the Court is simply asking: What is the reach of the law? … What is the law's reasonably foreseeable [page 807] impact? Courts have always asked these questions in construing the scope of offences and in determining their constitutionality.

62 The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen (I will address the usefulness of reported cases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.

[83] Moreover a reasonable hypothetical is not one that is likely to arise as a common occurrence. That issue is addressed at paragraph 68:

68 The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote" or "far-fetched" are excluded: Goltz, at p. 515. Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although "unlikely to arise" and what is "remote [and] far-fetched": A.F. (Nur), at para. 66. Moreover, adoption of the … standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M. The Court has never asked itself whether a projected application of an impugned law is common or "likely" in deciding whether a law violates a provision of the Charter. To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books.

[84] Finally, at paragraphs 73-76 the Chief Justice addressed the extent to which personal characteristics of hypothetical offenders may inform reasonable hypotheticals as follows:

73 A fourth ancillary question concerns the personal characteristics of hypothetical offenders that should be considered. Some have suggested that the consideration must be generalized to the point where all personal characteristics are excluded, while others assert that any and all characteristics should be included. This debate is largely the result [page812] of the reification of the notion of the reasonable hypothetical discussed earlier. It is answered by recognizing two aspects of the reasonably foreseeable application test.

74 First, what is reasonably foreseeable necessarily requires consideration of the sort of situations that may reasonably be expected to be caught by the mandatory minimum, based on experience and common sense. This means that personal characteristics cannot be entirely excluded. For example, as we will see in applying the test to this case, it may be … the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition.

75 Second, cutting the other way, is the admonition of Goltz that far-fetched or remotely imaginable examples should be excluded from consideration. This excludes using personal features to construct the most innocent and sympathetic case imaginable - on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality To repeat, the inquiry must be grounded in common sense and experience.

76 Thus, the inquiry into reasonably foreseeable situations the law may capture may take into account personal characteristics relevant to people who may be caught by the mandatory minimum, but must avoid characteristics that would produce remote or far-fetched examples.

[85] As has been outlined earlier the court has set a high bar for courts to find a sentence to constitute cruel and unusual punishment. The sentence must be grossly disproportionate which, as defined by the court, means “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society. However, in the recent case of Regina v. Lloyd the court has sounded a cautionary note as to the applicability of mandatory minimum sentences to offences which can be committed in a wide variety of ways by a wide variety of offenders. At paragraph 35 the court stated the following:

35 As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net; it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

[86] It appears common ground that the offence of attempted murder is one of those offences that can be committed in a wide variety of ways by a wide variety of offenders and accordingly the hypothetical proposed by counsel must be viewed in light of the admonition of the Supreme Court. In advancing hypotheticals the defence has conceded in argument that the vast majority of offences of attempted murder will attract a significant penitentiary term but that there exist exceptional circumstances which are reasonably foreseeable in which a mandatory minimum sentence would be grossly disproportionate. It is to the hypotheticals advanced by counsel to which I now turn.

1. hypothetical number 1 – the soldier who shoots an enemy combatant in war time

[87] In their factum the defence states this hypothetical as follows:

In addition to the actual circumstances of the applicant's case, the mandatory minimum captures other state actors including soldiers. For example, a soldier who was justified in killing the enemy but who superfluously shoots the enemy in a second volley in a manner that was not justified (and therefore is guilty of attempted murder) would face a mandatory minimum sentence of imprisonment for 5 years because he was armed with a restricted firearm. Such a sentence in those circumstances would be grossly disproportionate within the meaning of s.12 of the Charter because of the context in which it occurred and the individual it involved. The soldier is asked to put his or her life on the line in incredibly dangerous and high stress circumstances, but is then punished severely for a temporary lapse in judgment that had no consequence, since the killing itself is justified. Any reasonable member of society would find it abhorrent that an individual who was willing to risk his or her life to protect and serve their country, and was engaged in doing so at the time, would be imprisoned for five years for one bullet too many.

[88] The defence did not address this hypothetical in oral argument. I agree that this hypothetical is not properly the subject of domestic criminal law but of international law. For example, a soldier who intentionally kills or wounds an enemy combatant who is incapacitated on account of injury or illness or surrender has committed a serious war crime. (See: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (First Geneva Convention) Art. 3, 12, 13; Rome Statute of the International Criminal Court, Art. 8(b)(vi)(c)).

[89] In my view this hypothetical is both unreasonable and farfetched and is in any event merely an elaboration of the defence theory of Officer Forcillo’s moral blameworthiness in the circumstances of this case.

2. using an unloaded firearm as a blunt object in the context of an attempted murder

[90] The defence submits that by virtue of the phrase “firearm is used” liability for the mandatory minimum sentence in s.239 of the Criminal Code will arise even though there is no discharge or attempted discharge of the firearm. Accordingly, it is submitted that the fact that a firearm was capable of firing (and could cause injury) combined with using the firearm in any manner to commit the attempted murder would be sufficient to attract the mandatory minimum sentence. It is contended that the moral blameworthiness of the offender would be no different had the offender picked up a different object to attack the victim. Accordingly it is submitted that a mandatory minimum sentence would be grossly disproportionate as a person using another object, for example, a baseball bat, would not be subject to the same mandatory minimum sentence.

[91] While it is true that the use of another object would not automatically attract the mandatory minimum sentence I do not find this hypothetical persuasive. In my view it is reasonable to expect that in order to attract a conviction for attempted murder the conduct and consequences of either a “pistol whipping” or the use of another blunt object would necessarily have to be very severe in order to demonstrate the requisite intent to kill and accordingly the level of blameworthiness would be relatively similar resulting in a similar sentence.

[92] For example, in cases where a baseball bat, a hammer and fists were used to inflict serious injuries resulting in a conviction for attempted murder a sentence of life imprisonment was upheld and sentences of five and half and five years respectively were imposed. (See Regina v. Huff 2012 ONCA 86; Regina v. Justin, [1999] O.J. No. 5142 (Ont. Sup. Ct.) and Regina v. Terriak 2005 NSSC 27). In my view, it does not necessarily follow that the use of an object other than a firearm that warrants a conviction for attempted murder resulting in similar injuries will attract a lesser sentence which is grossly disproportionate to the mandatory minimum than if a fiream were used in similar circumstances.

3. The shooting of a trespasser

[93] The defence posits the hypothetical of a trespasser who threatens homeowners with a gun. A struggle ensues and the homeowner uses the gun to shoot the trespasser in lawful self-defence. As he awaits the arrival of the police the homeowner points the gun at the trespasser who is lying wounded on the ground. The homeowner shoots the trespasser with the intent to kill when he mistakenly but unreasonably believes that the victim is attempting to get up and accordingly is convicted of attempted murder because the defence of self-defence is unavailable. The defence submits that a mandatory minimum sentence of five years would be grossly disproportionate in those circumstances.

[94] Once again I do not find this hypothetical to be persuasive. In the hypothetical as presented the trier of fact would have been instructed with respect to honest and reasonable mistake of fact in the context of an instruction on self-defence. Once the defence is rejected by the trier of fact as unreasonable, the shooting becomes both unreasonable and unnecessary. That the mistake may have resulted from a mistake in judgment due to a misperception is insufficient to obviate the appropriateness of a mandatory minimum sentence. In Regina v. Morrisey, 2000 SCC 38, [2000] S.C.J. No. 38 Gonthier J. upheld the mandatory minimum sentence of four years with respect to a conviction of the offence of criminal negligence causing death involving an intoxicated hunter who shot and killed a companion in circumstances where he lost his footing causing the gun to discharge and thereby causing the death of his companion.

[95] In dealing with the hypothetical advanced in that case he stated the following at paragraphs 52-53:

52 The second hypothetical situation that arises from the reported cases involves a hunting trip gone awry. While hunting, the offender spots an object in the woods. The offender is either unsure what the object is or forms a completely unreasonable belief that the object is game. In either case, the object is, in fact, another human being. The hunter fires a gun at the object and kills the other person (McCrea, supra, and Weber, supra).

53 In both of these hypotheticals, it is my view that a four-year imprisonment would not be cruel and unusual punishment for such offenders. Perhaps the most egregious hypotheticals reviewed are the individuals playing with guns. Firearms are not toys. There is no room for error when a trigger is pulled. If the gun is loaded, there is a sufficient probability that any person in the line of fire could be killed. The need for general deterrence is as great (if not greater) for the hypothetical offenders playing with guns as it is for people such as the appellant. Considering the gravity of the offence, the denunciation and retributive justice principles satisfied by the minimum sentence are equally applicable in this hypothetical. In such circumstances, there can be no question that the four-year minimum is as appropriate as it is for the appellant.

[96] In my view this reasoning applies a fortiori to offences of attempted murder where the offender has the intent to kill and although he claims to have misperceived the level of threat is found by the trier of fact to have acted unreasonably. I fail to see how the mandatory minimum sentence would be grossly disproportionate in the hypothetical advanced by the defence.

4. the battered wife

[97] The defence posits a hypothetical in which a battered wife is the victim of repeated domestic partner abuse. She is threatened with a knife by her partner. She grabs her partner’s gun and shoots him knocking him to the ground. As he lays dying she shoots him again several times fearful that he might get up although he has not attempted to get up. She is acquitted of second degree murder with respect to the first shot based on a Lavallee analysis of self-defence but is convicted of attempted murder with respect to the second series of shots on the basis that the second shooting did not constitute reasonable self-defence and because she had the specific intent to kill.

[98] The defence submits that a mandatory minimum sentence of five years is grossly disproportionate in circumstances where battered wife syndrome is properly considered a sentencing factor in mitigation of sentence.

[99] Considerable reliance is understandably placed on the observations of Arbour J. who stated the following in her concurring reasons in Regina v. Morrisey, supra, at paragraphs 83-85:

83 In general terms, I believe that gross disproportionality is likely to manifest itself, for example, in the context of spousal abuse, as suggested by Professor Quigley, … Professor Quigley suggested that in the case of an abused woman who finally reacts to her abuser, kills him and is charged with criminal negligence causing death or manslaughter, "[t]here may be compelling reasons why a four-year sentence is grossly disproportionate in those circumstances. Indeed, the recent case of R. v. Ferguson, [1977] O.J. No. 2488 (QL) (Gen. Div.), concerned an accused who intentionally shot her abusive husband, while he was lying on a couch. Charged with murder, the accused was convicted of manslaughter and in the circumstances of the case, sentenced to a two-year-less-a-day conditional sentence. Because the offence occurred prior to the enactment of the Firearms Act, the judge ruled that the mandatory minimum sentence for manslaughter with a firearm, provided in s. 236(a), did not apply (at para. 124).

84 Additionally, the cases of R. v. D.E.C., [1995] B.C.J. No. 1074 (QL) (S.C.), and R. v. Chivers, 1987 CanLII 8599 (NWT SC), [1988] N.W.T.R. 134 (S.C.), also involved battered women who were convicted of a firearms homicide and received a suspended sentence in conjunction with probation. While battered women's syndrome was not sufficient to act as a complete defence to the charge, it was nonetheless considered a mitigating factor on sentencing.

85 In other cases involving battered women's syndrome and firearms homicides, courts have imposed relatively short periods of incarceration. For example, in R. v. Pettigrew (1990), 1990 CanLII 5417 (BC CA), 56 C.C.C. (3d) 390 (B.C.C.A.), the accused was convicted of unlawful act manslaughter, after accidentally shooting her husband while he slept, as she attempted to unload a gun. Although the accused was intoxicated at the time, the court recognized that she had a long history of abuse at the hands of her husband and in attempting to unload the gun, she was acting out of concern for her children's and her own safety. She was sentenced to six months' incarceration, followed by 12 months' probation.

[100] Initially, it should be noted that R. v. Pettigrew does not assist in demonstrating that the battered wife hypothetical does not warrant the mandatory minimum sentence of five years as the facts of that case have been recited in error. While the accused was the battered wife of her spouse the deceased was not her spouse but rather a close acquaintance of whom she was very fond and whom she shot accidentally in a drunken state. Accordingly, Pettigrew cannot be taken to support the proposition that a mandatory minimum sentence of five years would be grossly disproportionate for the offence of attempted murder with a firearm for a spouse who shot and killed their spouse with a specific intent to kill.

[101] Nevertheless, it is true that the remaining cases recognize that battered wife syndrome when the spouse is the deceased, is a significant factor in mitigation, which, on the facts of those cases, resulted in sentences below the mandatory minimum mandatory minimum sentence of five years even in circumstances where self-defence based on Lavallee was rejected by the trier of fact.

[102] However, the observations of Arbour J. in Morrisey are premised on convictions for manslaughter and not attempted murder such that the specific intent to kill is not part of the analysis of moral blameworthiness relevant to sentencing in cases to which she has referred nor do those cases take into account in assessing the quantum of sentence the value that society places on human life.

[103] In my view the decision of Ontario Court of Appeal in R. v. Craig, 2011 ONCA 142, [2011] O.J. No. 893 is much more valuable in assessing whether the proffered hypothetical of the battered wife demonstrates that the mandatory minimum sentence of five years is grossly disproportionate.

[104] In that case a battered wife was sentenced by the trial judge to eight years having been convicted of manslaughter on a charge of first degree murder claiming she acted in self-defence.

[105] In this case self-defence on the basis of Lavallee was held to have not been properly put to the jury for reasons akin to those which caused the jury to reject the defence in the hypothetical. At paragraph 35 the court stated:

34 In considering whether there was any air of reality to the claim of self-defence, the trial judge appreciated that the nature of the relationship between the appellant and the deceased provided valuable context. As he put it, both what the appellant perceived and the reasonableness of those perceptions had to be examined "through the lens of a battered woman". The trial judge also observed, however, that the long history of abuse did not in and of itself provide a justification for the killing.

35 We agree with the trial judge that not every killing by an abused person in response to prolonged abuse is justified under the self-defence provisions of the Criminal Code: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 at pp. 890-91. Self-defence is a justification for what would otherwise be culpable homicide, based on the necessity of self preservation. It is a recognition that in the circumstances described in the various self-defence provisions of the Criminal Code society accepts that a person is justified in killing another to save one's self. A person who kills another to escape from a miserable life of subservience to that person does not act in self-defence absent reasonably perceived threats of significant physical harm and reasonably held beliefs that the killing is necessary to preserve one's self from significant physical harm or death .

[106] With regard to the sentence appeal, the court refused to defer to the trial judge by upholding the sentence imposed of eight years on two bases. The trial judge erred by diminishing the mitigating effect of the deceased’s abuse on the battered wife by considering its nature rather than its effect on her. Secondly, he erred in accepting the Crown’s description of the manslaughter as “near murder”.

[107] In reducing the sentence to one of three years or time served the court stated the following at paragraphs 62:

62 We would not characterize this as a near murder. The jury was not satisfied that the appellant had the mens rea required for murder. That conclusion must have been based in part at least on the medical testimony that the appellant suffered from serious mental disorders caused in part at least by the treatment to which she had been subjected by the deceased for over 10 years. This is not a case where the appellant intended to kill but provocation reduced her liability to manslaughter. Nor is this a case where the absence of the necessary intent was due to factors for which the appellant bore some responsibility, e.g. intoxication. She was mentally ill at the time she killed her husband. Her illness was in no way her responsibility. This was not a case of "near murder".

63 The errors in principle made by the trial judge require this court to intervene and impose what it considers to be an appropriate sentence. In her important review of homicides involving spousal abuse, Ratushny J. identifies three to eight years as the range of sentence imposed on women who pled guilty to manslaughter where the homicide occurred in the context of spousal abuse: L. Ratushny, Self-Defence Review Final Report (1997) at p. 159. There are also cases where non-custodial sentences were imposed: e.g. Getkate; Bennett; R. v. Ferguson, [1997] O.J. No. 2488 (Ct. J. (Gen. Div.)).

64 Having regard to the entirety of the circumstances, and despite the powerful mitigating features, we are satisfied that incarceration was necessary in this case. This was a brutal homicide. As the trial judge observed, the sentence imposed must reflect the value that our society places on all human life. The appellant must bear responsibility for what she did, despite the mitigating features of this case.

65 The appellant has served about three years (two and a half years plus five months' pre-sentence custody). We are satisfied that a sentence of three years in custody certainly fully meets the needs of deterrence and denunciation in the circumstances. There is no need for any further incarceration.

[108] In my view, this case establishes a reasonable custodial range for manslaughter in the context of spousal abuse. More importantly however, it is clear from the reasoning of the court that notwithstanding the significant mitigating effect of very serious spousal abuse the sentence imposed in Craig was one of three years to reflect the value society places on human life and the responsibility the accused must take for her actions and would have been greater if the mens rea for murder was present. The specific intent to kill present in the hypothetical entails the highest level of moral culpability and accordingly, would require an increase in sentence which in itself would mandate a sentence at or very near the mandatory minimum sentence of five years. I am not persuaded that the imposition of a sentence of five years would be grossly disproportional.

5. non-physician assisted suicide

[109] The defence posits the hypothetical that an offender who is not a physician obtains the consent of the victim to kill the victim with a restricted firearm. He attempts to kill the victim and is unsuccessful. He is convicted of attempted murder. The defence contends that a sentence of the mandatory minimum of five years would be grossly disproportional for essentially two reasons. First, it is submitted once state sponsored killing is morally acceptable if the consent of the victim is obtained by a physician, the moral culpability of an individual who by obtaining the consent of the victim to facilitate suicide is considerably lessened. Secondly, the moral culpability of the individual is also lessened because he is acting for compassionate reasons.

[110] In my view, this hypothetical is unreasonable. I cannot accept that if a process exists for physicians to assist in ending the life of qualified persons legally, that it is in any sense either morally acceptable to do so illegally outside the process established by the state even for the best of motives. (See R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3). In my view such conduct as contemplated by the proffered hypothetical would constitute a significant aggravating factor warranting a sentence for attempted murder well beyond the mandatory minimum sentence of five years.

[111] In this regard, the Supreme Court in Carter v. Canada (Attorney-General), 2015 SCC 5, [2015] 1 S.C.R. 331 held that culpable homicides (and by extension attempted murders) which fall outside the future statutory regime of physician assisted suicide will still attract properly deterrent penal sanctions. At paragraph 120 the court stated:

Finally, it is argued that without an absolute prohibition on assisted dying, Canada will descend the slippery slope into euthanasia and condoned murder. Anecdotal examples of controversial cases abroad were cited in support of this argument, only to be countered by anecdotal examples of systems that work well. The resolution of the issue before us falls to be resolved not by competing anecdotes, but by the evidence. The trial judge, after an exhaustive review of the evidence, rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide. We should not lightly assume that the regulatory regime will function defectively, nor should we assume that other criminal sanctions against the taking of lives will prove impotent against abuse.

[emphasis added]

6. attempted infanticide

[112] The hypothetical which is contemplated posits a woman who shoots her under one year old baby with a restricted firearm but does not kill the infant. The woman suffers from a disturbed mind such that she satisfies the mental element for the offence of infanticide under s.233 of the Criminal Code. The defence contends that if the woman is prosecuted for attempted murder she is subject upon conviction to the mandatory minimum sentence of five years as infanticide is by its express terms only applicable to the offence of murder, which is a culpable homicide and not to attempted murder, which is not a culpable homicide. It follows therefore that infanticide which carries a minimum term of five years’ imprisonment is not available as a partial defence to attempted murder. The defence submits that the woman who attempts to kill her baby in an infanticide scenario not only fails to qualify for a five year maximum but is subject to a five year minimum. The perverse result is that the woman is worse off if the baby lives. Accordingly, to subject the woman in this hypothetical to the mandatory minimum sentence for attempt murder is an example where a five year minimum can result in a grossly disproportionate sentence.

[113] Initially it must be acknowledged that the specific terms of s.233 of the Criminal Code do not render infanticide a partial defence to attempted murder because attempted murder is not a culpable homicide. However, in my view, attempted infanticide is an included offence for the offence of infanticide as the attempted offence includes all of the essential elements of the offence of infanticide beyond mere preparation except that the offence of infanticide is not completed because the child survives. In my view there is no reason in logic or policy why if infanticide can be a partial defence to murder why attempted infanticide cannot be a partial defence to attempted murder provided all of the elements required for attempted infanticide are made out. To hold otherwise is to risk the preposterous result that the defence suggests. If, however, attempted infanticide were properly a partial defence to attempted murder then s.463(b) would apply:

Attempts, accessories -- Except where otherwise expressly provided by law, the following provisions apply in respect of persons who attempt to commit or are accessories after the fact to the commission of offences:

(b) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable;

[114] The effect of s.463(b) would be to reduce the maximum punishment of five years for infanticide by one half or two and one half years for attempted infanticide. I conclude that the hypothetical proffered does not assist the defence.

7. excuses – duress, provocation

[115] The defence does not point to a specific hypothetical with respect to the defence of duress. The defence submits that even though the defence of duress as outlined in s.17 of the Criminal Code does not apply to the offence of murder or attempted murder and even though the defence of provocation does not apply to attempted murder but serves to reduce what is otherwise murder to manslaughter, the presence of an evidentiary foundation for those defences may in certain circumstances so significantly mitigate the moral blameworthiness for attempted murder so as to render the mandatory minimum sentence of five years grossly disproportionate.

[116] With respect to the defence of duress the premise of the defence argument is that given that the statutory defence of duress is not available for attempted murder it is very difficult, in the face of an evidentiary basis for duress and perhaps extreme duress, to justify the mandatory minimum sentence for attempted murder when a firearm is used. However, there is good reason to infer that the statutory exemption for the application of the defence of duress to attempted murder is unconstitutional. In R. v. Aravena, 2015 ONCA 250, [2015] O.J. No. 1910, the Ontario Court of Appeal, observed that subject to a s.1 Charter argument which may be advanced by the Crown the statutory exemption for murder must be found unconstitutional as infringing s.7 of the Charter. In my view, given the difficulty of justifying an infringement of s.7 of the Charter, (see Nur, paragraph 111), if the statutory exemption is unconstitutional with respect to murder it will perforce be unconstitutional with respect to attempted murder. Under those circumstances, the common law defence of duress would be available to a charge of attempted murder. If the common law defence of duress is accepted by the jury the result will be an acquittal on the basis that the act committed was morally involuntary. If, however, on a charge of attempted murder the common law defence is rejected by the jury evidence of duress can mitigate the quantum of sentence. However, it is difficult to see how the evidence pertaining to duress, if the defence has failed, can have such a significant impact on the moral blameworthiness of the offender so as to render the mandatory minimum sentence of five years grossly disproportionate.

[117] In assessing whether the mandatory minimum of five years for attempted murder is grossly disproportionate the defence raises two points with respect to the effect of the partial defence of provocation.

[118] First the defence posits the scenario in which provocation reduces the offence of murder to manslaughter. By virtue of s.236 of the Criminal Code the mandatory minimum sentence for manslaughter in which a firearm is used is four years. The defence submits that this sentence is available to an offender who is provoked even though the offender had the requisite intent to kill and caused the death. On the other hand, in the case of an offender with the same intent to kill and subject to the same provocation but where death does not result the mandatory minimum sentence for attempted murder is five years.

[119] The defence submits that given the different mandatory minimums for the two offences, the potential inability of the trial judge to give full effect to the same evidence of provocation in sentencing for attempted murder suggests that the mandatory minimum of five years for attempted murder is grossly disproportionate.

[120] In my view, this scenario is of no assistance in determining whether the five year mandatory sentence for attempted murder is grossly disproportionate. A reasonable hypothetical to determine whether the mandatory minimum is grossly disproportionate must be constituted from facts pertaining to the same offence, not from a comparison of how the same facts inform the sentence of another offence.

[121] In my view, the second point made by the defence is more pertinent in assessing whether the five year minimum is grossly disproportionate. The defence submits that in the case of an attempted murder with a restricted firearm, where there is evidence of extreme provocation and where no injury occurs a sentence of five years would be grossly disproportionate. The defence has not provided me with a reported decision of another court with these facts. However, given the gravity of the offence of attempted murder in view of the highest level of mens rea known to law as identified by Logan, supra, and MacArthur, supra, given the decision to use a firearm which is an instrument specifically designed to achieve that intent and given the element that luck plays in determining the consequence of the use of the firearm it is conceivable that there may be circumstances where a fit sentence could be somewhat lower than the mandatory minimum of five years, but not so low as to render the five year mandatory minimum grossly disproportionate.

personal characteristics

[122] The defence submits that personal characteristics such as low intelligence and mental illness or emotional disturbance are significant factors that affect the moral culpability of offenders sentenced for conviction for the offence of attempted murder involving a firearm as reflected in the case law. It is claimed that the presence of these factors have resulted in sentences as low as a conditional sentence and that accordingly the likelihood that the mandatory minimum sentence will be grossly disproportionate if these factors are present is great. For example, in R. v. Murphy (1981), 58 C.C.C. (3d) 338 the offender shot a shotgun into a taxi cab. Although the property damage was extreme the driver suffered no injuries. At trial the accused was sentenced to five years in the penitentiary upon his conviction for attempted murder. The Nova Scotia Court of Appeal reduced the sentence to one of three years taking into account the intoxication of the offender and his borderline intelligence given the circumstances of the case. In the case of Regina v. Gionet, 1997 NSCA 208, [1997] N.S.J. No. 22 the Nova Scotia Court of Appeal upheld a sentence of two years less a day for a conviction of attempted murder using a firearm involving the shooting of his girlfriend in the head with a rifle which miraculously resulted in no permanent injury. The offender was psychotically unstable and had planned to commit suicide. While it was acknowledged that ordinary denunciation required a more substantial sentence, the court felt that the further imposition of probation so psychiatric treatment could continue was in the interest of justice. While it must be acknowledged that personal factors such as mental illness low intelligence and emotional disturbance will invariably affect the fitness of sentence, in exceptional cases I am not persuaded that those factors, in themselves or even in combination with other mitigating factors, will invariably result in a grossly disproportionate sentence.

[123] I prefer to be guided by the approach of the Ontario Court of Appeal in R. v. McDonald in assessing the effect to be given to such personal characteristics as mental illness in determining whether a sentence is grossly disproportionate.

[124] In R. v. MacDonald, 1998 CanLII 13327 (ON CA), [1998] O.J. No. 2990 the Ontario Court of Appeal considered whether a sentence of four years which was the mandatory minimum sentence for the offence of robbery with a firearm was grossly disproportionate so as to constitute cruel and unusual punishment within s.12 of the Charter. In that case the accused was 21 years old and was a manic depressive. The gun used in the robbery was unloaded and not brandished but kept in his pants. All the money was recovered. While the accused had a minor record for assault he was very remorseful. In imposing the sentence of four years the trial judge had not credited the accused with 6.5 months of pre-trial custody. In my view, the accused in this case was clearly a very sympathetic accused for a number of reasons. Nevertheless, Rosenberg J.A. considered the elements of the test to be used to assess whether the punishment is grossly disproportionate as outlined in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 at p.1073 and in R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485 at p.500 and concluded at paragraphs 71-72:

71 Applying those principles to this case, I have these comments. I have real concerns about the punishment imposed on this appellant even allowing credit for pre-sentence custody. A sentence of even three years' imprisonment is beyond what is necessary to punish, rehabilitate or deter this appellant or to protect the public from this particular appellant. I am particularly concerned that such a sentence does not take into account the impact of the appellant's mental illness.

72 I also have reservations about putting this relatively young man into a penitentiary setting. If it were open to this court to review the propriety of this sentence on the usual scale of appellate review as explained in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, I would find a three to four year sentence to be demonstrably unfit. However, that is not the same as gross disproportionality and I am not convinced that having regard to the objective gravity of any offence involving the use of a firearm, even an unloaded one, that a sentence approaching four years shocks the conscience. As La Forest J. wrote in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at 344-45, the standard under s. 12 is not so exacting as to require the punishment to be "perfectly suited to accommodate the moral nuances of every crime and every offender."

[125] It would appear that he gravity of the offence and the concern for public safety that underlie the principles of deterrence and denunciation ultimately trump even very sympathetic personal characteristics in assessing whether a sentence is grossly disproportionate.

[126] In my view, if the use of an unloaded firearm having regard to the objective gravity of the use of a firearm in the course of a robbery does not shock the conscience with respect to a mandatory minimum sentence of four years a fortiori. I fail to see that the use of a firearm in the course of an attempted murder that involves the specific intent to kill can shock the conscience in respect of a mandatory minimum sentence of five years for attempted murder.

[127] Having found that the mandatory minimum sentence of five years imposed by s.239(1)(a)(i) of the Criminal Code does not constitute cruel and unusual punishment contrary to s.12 of the Charter with respect to Officer Forcillo in the circumstances of this case and having reviewed the hypotheticals which the defence say are reasonably foreseeable as well as those factors which the defence say bear on the issue of whether the mandatory sentence in this case is grossly disproportionate I conclude that the mandatory minimum sentence provided for in s.239(1)(a)(i) and s.239(1)(a.1) does not constitute cruel and unusual punishment within s.12 of the Charter.

[128] It is accordingly not necessary to consider whether s.238(1)(a) and s.239(1)(a.1) could be justified under s.1 of the Charter.

does the mandatory minimum sentence in this case infringe s.7 of the charter

[129] For reasons advanced by the Chief Justice in Regina v. Lloyd 2016 SCC 13, 2016 S.C.C. 13 at paragraphs 38-47 it is not open to the defence to challenge mandatory minimum provisions on the basis that proportionality is a fundamental principle of justice. The Chief Justice stated the following at paragraphs 43-44:

43 Recognition of the principle of proportionality in sentencing as a principle of fundamental justice under s. 7 would also have implications for the respective roles of Parliament and the courts. The principle of proportionality is an admirable guide for judges seeking to impose fit sentences within the legal parameters established by Parliament. But it is not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament. Those norms are judged only by the standard of s. 12.

44 It has been said that "proportionality in sentencing could aptly be described as a principle of fundamental justice": R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 36. However, this does not mean that proportionality constitutes a new principle of fundamental justice distinct from the well-established principle of gross disproportionality under s. 7 of the Charter.

[130] With respect to s.7 of the Charter, the Supreme Court explained the distinction between arbitrariness/overbreadth and gross disproportionality in Canada (Attorney General) v. Bedford 2013 SCC 72 at paragraph 108-109:

[108] The case law on arbitrariness, overbreadth and gross disproportionality is directed against two different evils. The first evil is the absence of a connection between the infringement of rights and what the law seeks to achieve -- the situation where the law's deprivation of an individual's life, liberty, or security of the person is not connected to the purpose of the law. The first evil is addressed by the norms against arbitrariness and overbreadth, which target the absence of connection between the law's purpose and the s. 7 deprivation.

[109] The second evil lies in depriving a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law's objective. The law's impact on the s. 7 interest is connected to the purpose, but the impact is so severe that it violates our fundamental norms.

[131] It is the position of the defence that even if the mandatory minimum sentence has been held not to be grossly disproportionate with regard to s.12 of the Charter it is nevertheless open to the defence to assert that the mandatory minimum sentence in s.239 of the Criminal Code violates s.7 of the Charter on the basis of overbreadth. (See R. v. Nur, supra, paragraph 110 (SCC)); R. v. Boutilier (2014), 2014 BCSC 2187, 317 C.C.C. (3d) 1 (BCSC). I agree with this position.

[132] The constitutional doctrine of overbreadth is a principle of fundamental justice which allows the court to assess whether a law is so broad in scope that it includes some conduct that bears no relation to the purpose of the law. In Attorney-General (Canada) v. Bedford, supra, the Supreme Court explained the doctrine of overbreadth at paragraphs 112-113:

[112] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.

[113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

[133] There can be no question that the mandatory minimum sentence in s.239 of the Criminal Code effects the liberty interest of Officer Forcillo. Therefore in assessing whether s.239 of the Criminal Code is overbroad the issues for determination are:

What is the object or purpose of s.239 of the Criminal Code?
Does the law deprive Officer Forcillo or other individuals of life, liberty and security of the person in cases that do not further the object or purpose of the law?

what is the object or purpose of s.239 of the criminal code?

[134] It is important in attempting to discern and to articulate the purpose and effect of s.239 of the Criminal Code to heed the caution expressed by the Supreme Court in R. v. Moriarity 2015 SCC 55, 2015 S.C.C. 55 where the court stated the following beginning at paragraph 24:

… At the outset of an overbreadth analysis, it is critically important to identify the law's purpose and effects because overbreadth is concerned with whether there is a disconnect between the two. The overbreadth analysis thus depends on being able to distinguish between the objective of the law and its effects (resulting from the means by which the law seeks to achieve the objective). With respect to both purpose and effects, the focus is on the challenged provision, of course understood within the context of the legislative scheme of which it forms a part. …

continuing at paragraph 28:

28 The appropriate level of generality for the articulation of the law's purpose is also critically important. If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it, almost any challenged provision will likely be rationally connected to a very broadly stated purpose: see, e.g. Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 77. On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them. The appropriate level of generality, therefore, resides between the statement of an "animating social value" -- which is too general -- and a narrow articulation, which can include a virtual repetition of the challenged provision, divorced from its context -- which risks being too specific: Carter, at para. 76. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of over-breadth.

and finally at paragraph 32:

32 All of this underlines the point that courts should be cautious to articulate the legislative objective in a way that is firmly anchored in the legislative text, considered in its full context, and to avoid statements of purpose that effectively predetermine the outcome of the overbreadth analysis without actually engaging in it.

[135] For ease of reference the text of s.239 is reproduced:

(1) Attempt to commit murder -- Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.l) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

[136] How then is the purpose of s.239 to be determined? In R. v. Appulonappa 2015 SCC 59, 2015 S.C.C. 59 the Chief Justice provides guidance at paragraph 49:

49 The first, "most direct and authoritative evidence" of the legislative purpose of a provision is found in statements of purpose in the legislation itself -- whether at the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines: Sullivan, at pp. 274.76.

a) Statement of Purpose

[137] The Tackling Violent Crime Act from which s.239(1)(a) emanates does not contain a statement of purpose but does contain a Summary and Preamble:

IV. - SUMMARY

This enactment amends the Criminal Code by

(a) creating two new firearm offences and providing escalating mandatory sentences of imprisonment for serious firearm offences;

(b) strengthening the bail provisions for those accused of serious offences involving firearms and other regulated weapons;

(d) introducing a new regime for the detection and investigation of drug impaired driving and strengthening the penalties for impaired driving; and

(e) raising the age of consent for sexual activity from 14 to 16 years.

Preamble

Whereas Canadians are entitled to live in a safe society;

Whereas violence involving firearms continues to threaten the safety of Canadians;

Whereas dangerous and high risk offenders pose a significant threat to the public;

Whereas driving under the influence of drugs or alcohol can result in serious bodily harm and death on Canada's streets;

Whereas families should be able to raise their children without fear of sexual predators;

Whereas the Parliament of Canada is committed to enacting comprehensive laws to combat violent crime and to protect Canadians while respecting and promoting the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights ad Freedoms;

And whereas those laws should ensure that violent offenders are kept in prison, should provide those responsible for law enforcement with effective tools to detect and investigate crime, and should better protect young persons from sexual predators;

[138] The defence submits that while it may be difficult to glean the purpose of s.239 from the summary and preamble with precision nevertheless this material does send a signal that the legislation is aimed at deterring the use of firearms by criminals or members of criminal organizations. In my view, the purpose of s.239 is not unequivocally addressed nor can it fairly be gleaned from this material that the purpose is solely to deter the use of restricted weapons by criminals or on behalf of criminal organizations as opposed to members of the public or both.

[139] As the Chief Justice also pointed out in R. v. Appulonappa, supra, at paragraph 64 “statements made in the legislature leading up to the enactment of a provision may supply evidence of its purpose.”

[140] In that regard the defence relies upon the statements of the Minister of Justice after the Tackling Violent Crime Act had passed through the House of Commons urging the Senate to give the bill priority:

For illegal firearm possession and use by persons involved in criminal gangs we know that type of activity is increasing. We are saying there will be a mandatory five year sentence if one is in the business of using a gun or associated with gangs. What kind of offences are we talking about? We are talking about attempted murder, sexual assault with a gun, aggravated sexual assault, kidnapping, robbery, extortion and hostage taking. This is not jaywalking.

I remember standing here when we introduced the bill. I had one opposition member say to me that he did not understand that a lot of the people who commit those crimes do not understand the consequences of their actions. I said, "that is where I want to help".

We want to ensure that any individuals who want to get involved with these serious firearms offences will have the opportunity to focus on the consequences of their actions. We are prepared to do that and any individual who does not get the message after the first five year sentence, we will continue to help by making it a seven year mandatory prison term. This is exactly what the country wants and what the country focuses on.

(my emphasis)

[141] After the Bill received Royal Assent the Justice Minister stated:

Over the past two years, our Government has been working tirelessly to make these important changes to Canada's criminal justice system. With the passage of this bill today, we can say good-bye to the days of soft, lenient penalties for dangerous criminals ...This bill toughens sentencing and bail for those who commit serious gun crimes, ensures more dangerous offenders are kept behind bars, better protects children from sexual predators, and gives police more tools to help them crack down on those who drive under the influence of alcohol or drugs.

[142] I agree that these statements on the one hand emphasize that the mandatory minimum sentence does target the use of guns by criminal gangs, but on the other hand the statements include a mandatory minimum sentence if “one is in the business of using a gun or associated with gangs” as well as tougher sentencing “for those who commit serious gun crimes” or only “individuals who want to get involved with serious firearms offences”. In my view the statements suggest only one purpose with a particular emphasis on the criminal element. Moreover, the emphasis on gangs is understandable in the context of the minister seeking to persuade the Senate to act and in the context of seeking to promote the government’s agenda with the Canadian public. In my view the statements made by the minister establish a sole purpose with respect to s.239 of the Criminal Code and that is to deter the use of firearms by anyone with respect to the commission of serious crimes such as attempted murder with particular emphasis on those involved in crime.

c) The Text of Section 239

[143] The Crown submits that the plain meaning of the text is broad enough to illustrate Parliament’s intention to impose a mandatory minimum sentence on “everyone”, including police officers, who are convicted of attempted murder if that person used a restrictive weapon. This would suggest that the purpose of s.239 is to enhance public safety by deterring anyone from the use of guns to commit serious crimes such as attempted murder. On the other hand the text of the section also applies to persons who use the firearm and the “offence is committed for the benefit, or at the direction of, or in association with a criminal organization.” This wording suggests, as the defence submits, that a purpose of the section is to prevent the proliferation and use of restricted firearms by the criminal element in the commission of serious crimes such as attempted murder.

[144] In my view, it is not necessary to choose one purpose over another as it appears clear that the legislative object articulated after the word “or” in s.239 of the Criminal Code does not conflict with the legislative object that precedes the word “or” but rather is subsumed by it.

[145] As I understand the defence argument, the purpose of the section does not exclude the imposition of the mandatory minimum sentence on members of the public who choose to acquire a restricted weapon in order to commit the offence of attempted murder as by doing so they become part of the criminal element. The position of the defence is that the state goes too far in seeking to have the mandatory minimum sentence applied to police officers in the execution of their duty who do not choose to acquire a restricted firearm for the purpose of committing any crimes much less attempted murder, but who, on the contrary, are issued a restricted firearm by the state in order to protect themselves and members of the public from the commission of crimes by others and otherwise to perform their duties. It is the position of the defence that if Parliament had intended to apply the mandatory minimum provision to police officers the effect of the provision would greatly have exceeded its purpose of deterring the “criminal” use of firearms by criminals.

[146] The Crown submits that s.239 is not rendered overbroad by its application to police officers notwithstanding that they have been issued a restricted weapon to be used appropriately in the execution of their duties. If, as appears to be conceded, s.239 applies by its terms to ordinary citizens who acquire a restricted weapon and choose to use it to commit attempted murder, it is difficult to discern a distinction with respect to the situation in which a police officer uses the firearm which is issued to him and chooses to use it illegally to commit the same criminal offence. Indeed, it is possible for an ordinary citizen to have acquired a restricted weapon legally and then to choose to use it illegally. This would suggest that the purpose of the section is to enhance public safety by deterring “everyone” from the commission of the serious offence of attempted murder by the use of a weapon specifically designed to achieve that purpose.

[147] More importantly, the Crown submits that a confrontation between the police using a restricted firearm and citizens who are armed with a weapon is not a rare occurrence and accordingly s.25 of the Criminal Code serves to protect a police officer from criminal prosecution for the lethal use of force if the officer is justified in using the firearm within its terms. Once the protection is gone it is difficult to see why an officer is in a better position than an ordinary citizen if the lethal force used amounts to attempted murder. Moreover, in the execution of their duties police officers are criminally responsible for excessive force with respect to the use of the firearm.

[148] Section 26 of the Criminal Code states:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

[149] The Crown submits that in view of the provisions of ss.25 and 26 of the Criminal Code Parliament has recognized that police officers require the use of a firearm to perform their duties and accordingly there are both protections and restrictions on the use of the firearm to fairly account for the fact that a firearm has been issued to a police officer. In these circumstances there is no principled reason to exempt a police officer from the application of s.239 by reason of the state issuing a restricted weapon when by its plain wording of s.239 has general application to all persons who commit attempted murder.

[150] In my view, s.239 has both a general objective and a specific emphasis. By virtue of its plain wording the mandatory minimum sentence for the commission of attempted murder applies to “everyone” who uses a restricted weapon in the commission of that offence. The general objective is to deter the use of restricted weapons on the part of everyone engaged in the serious offence of attempted murder which would include the members of the public and police officers. A specific emphasis is to deter members of criminal organizations from the use of restrictive weapons to commit serious criminal offences such as attempted murder. In my view, the summary and the preamble to the enactment of s.239 do not confine the object of s.239 to deterring the use of firearms solely to criminals by seeking to deter everyone from the use of firearms to commit serious crimes. The statements of the minister emphasize a specific concern but also maintain a much broader concern. Having regard to the plain wording of the section I am unable to conclude that by emphasizing the aspect of deterrence to criminals Parliament meant to exclude police officers. Indeed, the defence concedes that s.239 applies to the members of the public and not just to persons associated with criminal organizations. In those circumstances I am unable to conclude that police officers are excluded by virtue of the fact that they are issued restricted firearms at the behest of the state. Section 239 must be viewed in the context of all of the sections of the Criminal Code which deal with the possession and use of firearms but most importantly in the context of ss.25 and 26 which fairly provide for both protection and restriction on the use of lethal force by police officers.

[151] I conclude that s.239(1)(a) is not overbroad in its application to police officers and accordingly does not infringe s.7 of the Charter. It is unnecessary to consider s.1 of the Charter.

[152] As I have found that s.239(1)(a) of the Criminal Code does not infringe either s.12 or s.7 of the Charter it is not also necessary to consider the constitutionality of s.742.1 of the Criminal Code.

THEN J.

RELEASED: July 29, 2016

CITATION: R. v. Forcillo, 2016 ONSC 4896

COURT FILE NO.: CR-14-10000434-0000

DATE: 20160729

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES FORCILLO

Applicant

RULING RE: CONSTITUTIONAL CHALLENGE

THEN J.

RELEASED: July 29, 2016

R. v. Forcillo, 2016 ONSC 4896

Case Summary

background

DOES THE MANDATORY MINIMUM SENTENCE IN THIS CASE INFRINGE S.12 OF THE CHARTER?

a) The Gravity of the Offence

b) The Particular Circumstances of the Offence

What are the implication of this finding on the issue of moral blameworthiness?

c) Personal Characteristics

d) Effect on Officer Forcillo

e) Penological Goals and Sentencing Principles

f) A Comparison of Punishments Imposed for Other Similar Crimes

reasonable hypotheticals

1. hypothetical number 1 – the soldier who shoots an enemy combatant in war time

2. using an unloaded firearm as a blunt object in the context of an attempted murder

3. The shooting of a trespasser

4. the battered wife

5. non-physician assisted suicide

6. attempted infanticide

7. excuses – duress, provocation

personal characteristics

does the mandatory minimum sentence in this case infringe s.7 of the charter

what is the object or purpose of s.239 of the criminal code?

a) Statement of Purpose

c) The Text of Section 239

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 6

Legal Tests 3

Legislation 2