From the moment Const. James Forcillo left his police cruiser with his gun raised, he was trying to intimidate Sammy Yatim, the Crown argued Tuesday at Forcillo’s sentencing hearing for the attempted murder of Yatim.

“(Forcillo) failed to follow his training and common sense and chose to pursue an unnecessarily aggressive and emotional approach,” Crown prosecutor Milan Rupic said.

That is a breach of trust, he said, because police officers are required to ensure civilians are not unnecessarily injured when being arrested.

Rupic argued that Justice Edward Then should look at the entirety of Forcillo’s behaviour when making his sentencing decision, including Forcillo’s failure to use de-escalation before both the first and second volleys of shots he fired at Yatim.

Justice Then responded that it seems far more interesting to compare the de-escalation efforts made by Forcillo before each volley.

Some attempt at de-escalation was made before the first shots through the commands to drop the knife, but no attempt at all was made in the six seconds before the second volley of shots, Then said.

A jury acquitted Forcillo of second-degree murder for the first three shots that fatally struck Yatim as the 18-year-old held a knife and took a step closer to the open door of an empty, stopped streetcar.

He was found guilty of attempted murder for shooting Yatim again six seconds later while he was lying on his back on the floor of the streetcar, paralyzed and dying.

Forcillo’s lawyers are seeking to have the mandatory minimum sentence for attempted murder with a restricted firearm — five years — found unconstitutional so that Forcillo could receive sentence of two years less a day on house arrest.

They have argued Forcillo basically acted in “excessive self-defence” when he fired the second volley. The six shots caused the most minimal level of harm, lawyer Peter Brauti argued, because Yatim did not feel them and died shortly after.

The Crown says it is not necessary for the court to look at the constitutional issue since Forcillo’s conduct deserves a prison sentence of eight to 10 years.

The injuries from the second volley of shots would have required major surgery if Yatim had lived, and it was just a matter of luck that the shots did not contribute to his death, Rupic said. Yatim was also conscious during the shots, and during the subsequent Tasering by another officer.

“By failing to take responsibility for the gravity (of the offence), Forcillo is trying to wriggle out of the enormity of the crime,” Rupic said.

The Crown and defence have both referred to R v Ferguson, a case where an RCMP officer in Alberta shot a prisoner in a cell after the prisoner attacked him and tried to grab his gun. He was convicted of manslaughter with a firearm and the Supreme Court of Canada upheld the mandatory minimum sentence of four years.

“This is really a much worse situation than Ferguson,” Rupic argued, noting Const. Michael Ferguson did not have the intent to kill — a requirementto prove an attempted-murder charge.

Ferguson had also been suddenly physically attacked and was alone in the cell, unlike Forcillo who was surrounded by other police officers.

“Like Const. Ferguson, (Forcillo) was acting while on duty, he was trained in the use of firearms, he was trained in how to interact with persons in crisis. (Forcillo) owed Yatim a duty of care to properly engage him in a situation so as to prevent loss of his life,” Rupic said. “He was trained and expected to be better.”

Justice Then raised the question of whether police officers should get special treatment during sentencing since, as the defence argued, they are duty-bound to carry guns and engage in potentially dangerous situations.

But police officers already get special treatment — the defence of justified force — that is not available to civilians, Then continued.

“Why should there be a special exemption when you already have one?” he said.

Rupic also objected to the defence submission that the judge could find the first few of the six shots were self-defence.

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The jury was instructed to view the six shots as one package, Rupic said.

Justice Then observed that if Yatim did not pose an imminent threat, none of the bullets were justified.

The sentencing hearing continues Wednesday. Justice Then is expected to reserve his decision.