Two weeks ahead of Const. James Forcillo’s high-profile appeal hearing, Crown prosecutors are defending the jury’s decision to find the Toronto police officer guilty in the attempted murder of Sammy Yatim, who died in a hail of Forcillo’s bullets in July 2013.

After six days of deliberation, a jury last year found Forcillo not guilty of second-degree murder in Yatim’s death — but convicted him of attempted murder in the now infamous streetcar shooting that killed 18-year-old Yatim.

The conviction “does not accord with logic or common sense,” Forcillo’s lawyers argued in documents filed to Ontario’s Court of Appeal in May, asking for the officer’s conviction to be quashed or for a new trial to be ordered.

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“As a matter of common sense, the suggestion that an accused can be legally justified in killing someone, but criminally liable for attempting to kill that same person within the span of less than 10 seconds, is unfathomable,” Forcillo’s lawyers wrote, calling the conviction a “compromise verdict.”

But in a written response filed with the court Friday, Crown lawyers say there “no logical or factual inconsistency” in the jury’s verdicts.

“The two verdicts in this case were not inconsistent. They arise from different factual and legal bases, which were clearly explained to the jury by both Crown and defence counsel in their opening and closing addresses, and by the trial judge in the charge to the jury,” write Crown lawyers.

Forcillo, currently suspended without pay by the Toronto police and out on bail, will be back in court next month for the appeal of the unprecedented attempted murder conviction of a cop in an on-duty shooting.

Yatim was killed just after midnight on July 27, 2013, moments after the teenager exposed himself and pulled a small knife on unsuspecting passengers on the Dundas St. W. streetcar. Yatim was alone on the streetcar by the time police arrived.

As Yatim stood at the front door of the streetcar holding the pocket knife, Forcillo shot at him in two distinct volleys separated by five-and-a-half seconds. He fired three times then, as Yatim lay on the floor of the streetcar paralyzed and dying, six more times, striking him a total of eight times.

The jury determined Forcillo’s first three shots — during which the fatal shot was fired to the heart — were not a criminal act. But it found the second volley was neither justifiable or in self-defence, and convicted him of attempted murder.

The jury was entitled to find Forcillo guilty of attempted murder for any of the shots in the second volley, “if the jury found that Mr. Yatim was alive during the second volley, that any of the shots were not justified, and that (Forcillo) had the specific intent to kill when he fired an unjustified shot,” the Crown wrote in its response to Forcillo’s lawyers’ arguments.

Forcillo’s lawyers also argued that trial judge Justice Edward Then incorrectly accepted the Crown position that the second volley of shots was a separate event. In their response, the Crown said if Then had not specifically instructed the jury on their option to convict Forcillo of attempted murder, they would have been left in an “‘all or nothing situation,’ perhaps feeling compelled to render a guilty verdict to sanction conduct that they found morally reprehensible but that did not cause death.”

In a scathing sentencing decision released in July 2016, Then handed down a six-year prison sentence, finding the shooting of Yatim was “unnecessary and unreasonable and excessive from the outset of the second volley.”

The six-year sentence is one year longer than the mandatory minimum of five years jail time for attempted murder with a weapon, something Forcillo’s lawyer say violates the Charter.

“Any reasonably informed observer would not support the imposition of severe jail sentences on those who make errors in judgment in the heat of the moment and pose little to no danger to society,” Forcillo’s lawyers argued in their written submission.

if the conviction is upheld, Forcillo’s lawyers asked the Court of Appeal to find that the mandatory minimum sentence violates the Charter, and that a suspended sentence should instead be imposed.

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The Crown, however, says the sentence imposed was fit “and, indeed, at the bottom of the range this Court has set for attempted murder.”

Forcillo’s lawyers have also argued several other grounds for appeal, including Then’s decision to disallow a defence witness to testify about “suicide by cop” and to exclude evidence about Yatim’s text message history and Google searches. Months before he died, Yatim had searched “the easiest way to kill yourself” and “how to commit suicide without feeling any pain.”

wgillis@thestar.ca