Constitutional Exemptions to Mandatory Minimum Sentences: An Unambiguous Ruling in R v Ferguson
At an Royal Canadian Mounted Police (“RCMP”) detachment in Pincher Creek, Alberta, an altercation arose between the detained Darren Varley and Michael Esty Ferguson, an RCMP officer. Mr. Varley was shot twice and killed, and Constable Ferguson was charged with second-degree murder. He was convicted by a jury of the lesser offence of manslaughter, and the trial judge imposed a conditional sentence of two years less a day, notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code, RSC 1985, c C-46, for manslaughter with a firearm. The majority at the Alberta Court of Appeal overturned that sentence, holding that the mandatory minimum must be imposed. Matthew Shogilev of TheCourt.ca has previously commented on this case and has thoroughly summarized both the facts and the appeal court’s analysis [(6 November 2007) online: <www.thecourt.ca>].
Constable Ferguson appealed to the Supreme Court of Canada (“SCC”) on the grounds that imposing the mandatory four-year sentence on the circumstances of his case would constitute cruel and unusual punishment, contrary to section 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“]. He argued that the trial judge was correct in granting him the constitutional exemption from the four-year minimum sentence imposed by Parliament. On Friday, the SCC dismissed Constable Ferguson’s appeal in R v Ferguson,  1 SCR 96 [“Ferguson“], on the grounds that the mandatory minimum sentence was not a cruel and unusual punishment in light of his circumstances. Additionally, the SCC said that constitutional exemptions are generally an inappropriate remedy for cruel and unusual punishment imposed by such mandatory minimum sentences.
The first issue tackled by the SCC was whether the four-year mandatory minimum sentence was cruel and unusual in Constable Ferguson’s specific case. The SCC recalled that in R v Morrissey,  2 SCR 90, the four-year mandatory minimum sentence for criminal negligence causing death was held to be constitutional; notably, in that case, Arbour J. indicated that there is a considerable overlap between unlawful act manslaughter (the offence at issue in Ferguson) and criminal negligence causing death, which was the offence in Morrissey. Relevant case law also demonstrated an implicit acceptance that, as a matter of precedent, s. 236(a) does not violate s. 12 of the Charter.
However, Constable Ferguson argued against analogizing in this fashion. He considered Arbour J.’s further remarks in Morrissey; she stated that given the wide range of circumstances under which the two analogous offences can be committed, it is not possible to conclude that the mandatory minimum sentence will be constitutional in every possible application. Constable Ferguson wanted a constitutional exemption to be granted on the grounds that his was one of the rare cases in which applying the required sentence would lead to an unconstitutional result.
The SCC disagreed that this was such an exceptional case, and delved into the details of Constable Ferguson’s trial. These facts were to be measured against the test for whether a particular sentence constitutes cruel and unusual punishment; to be cruel and unusual, a sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable:” R v Wiles,  3 SCR 895, at para 4. Additionally, following the sentencing principles set out in ss. 718 to 718.2 of the Criminal Code, as well as principles developed in the common law, the SCC specified that the trial judge in this case was required to find facts, consistent with the jury’s manslaughter verdict, to the extent that this was necessary to enable him to sentence Constable Ferguson.
However, the trial judge did not adhere to these guiding principles, and the SCC found that the trial judge erred in two main respects when he ignored the minimum four-year sentence. Firstly, he erred in attempting to reconstruct the logical reasoning of the jury. By engaging in “speculative and artificial” reasoning, the trial judge attempted to reconstruct facts that may or may not have reflected what was in the minds of the jurors. One such fact was that the jury had determined that the first shot fired by Constable Ferguson was fired in self-defence. Secondly, the trial judge went on to develop a theory to support the jury’s verdict which was actually contrary to the evidence at trial. He held that Constable Ferguson’s second shot was instantaneous and instinctive, as a result of his police training. Based on this theory, the trial judge found that Constable Ferguson was not acting in anger when he fired the second fatal shot.
This conclusion was critical to the trial judge’s finding that the mandatory minimum sentence prescribed by s. 236(a) constituted cruel and unusual punishment. But troublingly, this theory did not coincide with other, uncontradicted evidence relating to the circumstances of the shooting, namely a three-second interval between the first and second shot. This evidence was provided by two witnesses, the booking officer and the inmate in the next cell, who both testified that this delay occurred. Their evidence was further supported by the fact that Constable Ferguson’s firearm did not permit rapid, automatic second shots to be fired.
The trial judge’s unsubstantiated finding that the second, fatal shot was merely a matter of training was vital to his conclusion that Constable Ferguson was at “the low end of the spectrum of moral blameworthiness, such that four years imprisonment would be grossly disproportionate and intolerable to an informed public, and so would violate s. 12 of the Charter.” Yet in light of the unmistakable flaws in his own reasoning, the trial judge’s conclusion that the minimum sentence was unconstitutional became unsupportable.
Setting aside these erroneous findings, the SCC attempted to find an alternative basis for holding that this mandatory minimum constituted cruel and unusual punishment. Though there were mitigating factors corroborated by the Court of Appeal, such as the unplanned nature of Constable Ferguson’s actions, Mr. Varley’s initiation of the altercation, and the fact that Constable Ferguson could not fully consider his response, these were found to be more than offset by the position Constable Ferguson held with the RCMP. The SCC concluded that in light of all of these factors, Constable Ferguson’s moral culpability was not reduced to the extent that the mandatory minimum was grossly disproportionate in his case. The four-year minimum was not cruel or unusual punishment on the facts of this case, even when analyzed in the absence of the trial judge’s improper reasoning.
The second issue on appeal addressed whether the trial judge was even entitled to grant this constitutional exemption from the minimum and to impose a lesser sentence. This question hinged on the court’s finding on the first issue, and since the SCC held that the mandatory minimum did not violate s. 12 of the Charter, it was technically unnecessary to consider the second issue. However, the SCC took advantage of the opportunity presented in Ferguson to settle the question of whether such an exemption would have been available.
The SCC began this portion of its decision by summarizing the two main arguments in favour of recognizing constitutional exemptions. Firstly, where a mandatory minimum sentence is constitutional in most of its applications and only unconstitutional in very few cases, it is better to grant an exemption than to strike down the law as a whole. Secondly, this remedy is available on the wording of the Charter and its jurisprudence. Section 24(1) of the Charter provides courts with broad discretion to grant “appropriate and just” remedies; such a remedy would be consistent with the judicial practices of severance, reading in and reading out, which are all performed in order to preserve the law to the maximum extent possible.
However, the SCC concluded that these arguments were outweighed by counter-considerations, namely: (1) jurisprudence, (2) the need to avoid intruding on the role of Parliament, (3) the remedial scheme of the Charter, and (4) the impact of granting constitutional exemptions in mandatory sentence cases on the values underlying the rule of law.
Considering the jurisprudence in this area, the SCC conceded that there has not been a definitive ruling on whether constitutional exemptions are available as a remedy to unconstitutional sentences. There have been both positive and negative evaluations of constitutional exemptions as remedies, yet the SCC surveyed the relevant cases and held that the weight of authority is generally against these types of remedies.
On the issue of parliamentary intrusion, the SCC was understandably reluctant to add new constitutional exemptions to its repertoire. Though existing remedies, such as severance or reading in, appear to be less intrusive than striking down legislation entirely, they may still inappropriately interfere with the legislative intent of a law. In all cases, the SCC specified that courts must be guided by respect for the role of Parliament, as well as respect for the purposes of the Charter. With these principles in mind, the SCC held that allowing courts to grant constitutional exemptions for mandatory minimums would directly contradict Parliament’s intent in passing the legislation. Parliament creates mandatory minimums to remove judicial discretion, and the four-year minimum sentence for manslaughter is an unambiguous exercise of such judicial silencing. To grant an exemption from mandatory minimum sentence law goes directly against Parliament’s clear intention. Keeping in mind the separation between the legislative and judicial spheres, the SCC concluded that a constitutional exemption to mandatory minimum sentences is undesirable.
The SCC arrived at a similar holding when it considered the remedial scheme of the Charter. Remedies are governed by s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982, and these provisions serve different remedial purposes. S. 24(1) provides a remedy for government acts that violate Charter rights, while s. 52(1) remedies the laws that violate Charter rights either in purpose or effect. Constable Ferguson did not request that the law be struck down under s. 52(1); rather, he argued that if the minimum sentence was found to violate the Charter, a constitutional exemption under s. 24(1) should be granted. This would allow the law to remain in force, but not apply in cases where its application results in a Charter violation. The SCC disagreed, specifying that s. 52(1) would provide the proper remedy to this Charter violation, had it been found in Ferguson. The mandatory wording of s. 52(1) suggests that unconstitutional laws should be struck down, not left on the books subject to discretionary, case-by-case remedies. The Constitution does not permit a law to become inapplicable merely for the purpose of the case at hand; rather, it requires that the law become null and void, effectively removed from the statute books. Constable Ferguson’s request for s. 24(1) relief was therefore held to be an inappropriate remedy.
Finally, the SCC considered the rule of law, and held that Constable Ferguson’s desire for a constitutional exemption undermines this rule. Constitutional exemptions leave the law uncertain and unpredictable, as judges would determine when such an exemption would be granted on a discretionary basis. A fundamental tenet of the rule of law provides that citizens must know what the law is in advance so that they may govern their conduct accordingly; this knowledge would be impaired if such unexpected exemptions were permitted. Allowing unconstitutional laws to remain valid, pending case-by-case analysis, also deprives Parliament of certainty, since courts guide the legislature as to what is constitutionally permissible. If constitutional exemptions were to be granted, courts would alter the state of the law on constitutional grounds without providing guidance to Parliament as to what the Constitution requires in the circumstances. A case-by-case approach to such constitutional exemptions does not accord with the role of Parliament, or the rights of citizens, under the rule of law.
Ultimately, the SCC held that constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a mandatory minimum sentence. If such a law is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and effect, under s. 52(1). The discretionary, case-by-case approach requested by Constable Ferguson does not cohere with the values and principles that underlie our legal system.
Though Matthew did not predict the outcome of the SCC appeal in his post, he did note that, “[t]he SCC has never granted a constitutional exemption, much less a purely individual one. Moreover, the latter have been definitively rejected in appellate courts in Ontario, New Brunswick, and Quebec.” After Ferguson, this statistic has remained intact, and rightly so. The Supreme Court was persuasive in its reasoning that such an exemption is inconsistent with both the circumstances of Constable Ferguson’s case, and within the larger context of the Canadian criminal justice system. As a result of its thorough treatment of the issue in Ferguson, the SCC has appeared to put the issue of constitutional exemptions to mandatory minimum sentences to rest for some time.
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