David Butt is a Toronto-based criminal lawyer.
So Toronto police officer James Forcillo was sentenced to six years for the attempted murder of Sammy Yatim. That number, so clean and conclusive, cannot begin to illustrate the difficulty involved in arriving at it.
Any judge will say that sentencing an offender is by far the hardest part of the job. The judge must express in a number (of months or years in jail), a whole host of important principles that share one common characteristic: They cannot be expressed in a number. So the task of sentencing is both essential and impossible.
A sentence must always reflect the following principles: community disapproval of the crime; grief felt by victims and loved ones; deterrence to others tempted to commit similar crimes; encouragement to the offender to change his or her behaviour; and consideration of the offender's unique personal circumstances that may engender sympathy. These principles, while important, are ephemeral. So how can we accurately measure their weight, and their complex interrelationships in any given case, using years in jail as the scale? The truth is, we cannot.
Sentencing is therefore an exercise of the imagination: the judge's imagined construct of what measuring these immeasurables might look like. It is art, not science,where the judge's imagination plays no less a role than that of an artist. The judge's reasons for a sentence, laced with technical jargon creating the illusion of analytical precision, are an elaborate castle built on a cloud.
But building these celestial castles is an essential social service. Without passing judgment, we cannot reflect with as much insight on how the crime affected us, personally or socially. Without passing judgment, we cannot move on. We cannot define goals around how to improve our interactions with each other. We cannot feel affirmed in our bedrock community values. We cannot heal.
The prosecution said Constable Forcillo violated the promise he made to serve and protect, with tragic consequences, and for that he should be harshly punished with a prison term of eight to 10 years. Makes sense. The defence said Constable Forcillo is a fine young man who was placed in troubling, dangerous circumstances with little time to react, and it would be folly to waste scarce societal resources incarcerating him. That makes sense, too. The artist on the bench faced a challenging task.
But he did not face the task empty-handed. Four key features of the case offered non-specific, but substantial guidance. The starting point was the mandatory minimum sentence of five years. Such minimums are handcuffs that constrain the judicial art of sentencing crudely and unwisely. But Parliament had imposed shackles the judge felt he could not escape.
Second, the judge had to respect the jury's verdict. Constable Forcillo was not to be sentenced for killing 18-year-old Sammy Yatim – because the jury acquitted him of murder.
Third, the circumstances of the shooting were unique in ways that put both upward and downward pressure on the appropriate amount of jail time. On one hand, an officer wrongfully shooting a civilian is an egregious breach of the trust we place in those we rely upon for our protection. On the other hand, if we ask officers to place themselves in harm's way for us, we cannot judge by a standard of perfection their inevitably human reactions in stressful crises not of their own making.
Fourth, Constable Forcillo is a decent man who made a tragic error in judgment. He will never work as a police officer again. There is no need to ramp up the punishment to protect the public from any future crimes he might commit.
Balancing all of these competing considerations, the judge went above the statutory minimum, but not very far. In so doing, he implied that while this is a very serious matter, it is not the worst of its kind.
People will see six years as too much or too little, for many differing reasons. And the case is being appealed, so appeal judges will weigh in as well. They will provide the last official word on the sentence, not necessarily because theirs is the best assessment, but because the case must end sometime.
The Forcillo sentencing decision is art that matters. And like all important art, we will mine it for meaning in the hope of moving forward, whatever that may come to mean.