The Debate over Constitutional Exemptions in R v Ferguson

In the popular, post 9/11 imagination, “cruel and unusual punishment” means torture. That being said, the ambit of s. 12 of the Charter, which enshrines the right “not to be subjected to any cruel and unusual punishment” extends well beyond torture. Both the scope of s. 12 of the Charter as well as the nature of the relief available for a s. 12 violation were at issue in R v Ferguson, 2006 ABCA 261 [Ferguson], a case on the Supreme Court of Canada’s (“SCC”) November docket.


In October of 1999, Michael Esty Ferguson, then an RCMP officer, was dispatched to a hospital and asked to investigate a complaint from Darren Varley concerning an alleged hit and run and the disappearance of Mr. Varley’s fiancée. At the hospital, Mr. Ferguson recalled having considerable difficulty obtaining information from Mr. Varley, who was very intoxicated at the time. In the course of two men’s interaction, they became involved in a scuffle, at which point Mr. Ferguson took Mr. Varley into custody on charges of public intoxication. Back at the RCMP detachment, the two were involved in a second altercation, which culminated in Mr. Ferguson fatally shooting Mr. Varley. Mr. Ferguson was subsequently arrested and charged with second degree murder.

At Trial

At trial, Mr. Ferguson was convicted of unlawful act manslaughter, a crime that carries a four year mandatory minimum sentence pursuant to s. 236(a) of the Criminal Code, RSC 1985, c C-46 [Code]. However, Mr. Ferguson argued at trial that a four year sentence constituted cruel and unusual punishment within the meaning of s. 12 of the Charter. Interestingly, Mr. Ferguson requested a novel constitutional remedy for the alleged s. 12 violation. Instead of arguing that s. 236(a) should be struck down, he asked the court to grant him a constitutional exemption. In other words, Mr. Ferguson requested a purely individual constitutional remedy, taking issue not with the requirement of mandatory minimum sentencing for unlawful act manslaughter established in s. 236(a) of the Code, but rather with its application to him personally.

Ferguson’s argument in this regard caught the ear of Hawco J. of the Alberta Court of Queen’s Bench. Hawco J. relied on R v Morrisey, [2000] 2 SCR 90, in which Arbour J. (writing for the minority), contemplated scenarios, in reference to criminal negligence manslaughter (s. 220 of the Code), where a mandatory minimum sentence would be “grossly disproportionate.” The case at bar, Hawco J. concluded was one such scenario:

In what I stress again are the very unique circumstances of this case, including the effect a sentence of four years in prison would have on Mr. Ferguson, when I consider what I believe would, but for the statutory minimum, be an appropriate sentence, I am satisfied that an informed public would consider that four years imprisonment for this particular offender would intolerable.

With this in mind, Hawco J. concluded that “the minimum sentence prescribed by Section 236(a) of the Code is grossly disproportionate to the particular circumstances of this case.” Finding (with specific reference to Mr. Ferguson), that the mandatory minimum sentence for unlawful act manslaughter constituted cruel and unusual punishment, and therefore contravened s. 12 of the Charter. As a result, Hawco J. proceeded to grant Mr. Ferguson a two year conditional sentence, to be served in the community, pursuant to s. 742.1 of the Code.

On Appeal

Not surprisingly, the Crown appealed the decision of the decision of the trial judge. The Alberta Court of Appeal was divided over the decision. Hawco J.’s decision was supported by Obrien J.A., who agreed that the minimum sentence prescribed by s. 236(a) of the Code was grossly disproportionate in Mr. Ferguson’s specific context, and consequently supported the provision of a constitutional exemption. However, the trial judge’s decision was rejected by Fruman J.A. and Paperny J.A., who constituted a majority of the appellate court.

Writing for the majority, Fruman J.A. characterized the constitutional remedy awarded at trial by Hawco J. as a “significant expansion of generally accepted constitutional remedies.” Perhaps most egregious for Fruman J.A. was the “purely individual” nature of the remedy Hawco J. had ordered.

In evaluating the legitimacy of the trial judge’s s. 12 analysis, Fruman J.A. provided her own, very methodical s. 12 analysis based on the factors set out in R v Latimer, [2001] 1 SCR 3 [Latimer]. Latimer, drawing on R v Smith, [1987] 1 SCR 1045, identified several factors on which alleged s. 12 violations are evaluated: (i) the gravity of the offence; (ii) the personal characteristics of the offender and the particular circumstances of the case; (iii) the effect of a four year mandatory minimum sentence; (iv) the effect of such a sentence; (v) alternative sentences; and, (vii) sentencing goals and legislative objectives.

With respect to the gravity of the offence, Fruman J.A. based her assessment on two factors: whether Mr. Ferguson met the mens rea requirement, and his moral blameworthiness. She found that “when Ferguson’s subjective and objective intent are examined, the gravity of his offence is high.” To be sure, Fruman J.A. admitted that “mitigating factors” (such as the fact that it was Mr. Varley who had initiated the altercation) “reduce his moral culpability, but not to the extent that the mandatory minimum sentence is grossly disproportionate in his case.”

Under the head of “Personal characteristics and particular circumstances of the case,” Fruman J.A. held that Mr. Ferguson’s “standard of care as a police officer was higher then would be expected of a normal citizen,” but also acknowledged that he was also a 19-year veteran of the R.C.M.P. with an otherwise good record and did not himself instigate the altercation that lead to Mr. Varley’s death.

As Hawco J. noted at trial, as a former R.C.M.P. officer, Mr. Ferguson, for his own safety, would likely spend 23 hours a day in solitary confinement. This consideration was instrumental in the trial judge’s finding that the mandatory minimum sentence for unlawful act manslaughter (specifically in Mr. Ferguson’s case), contravened s. 12 of the Charter. To this end, Fruman J.A., was particularly critical of the trial judge for failing to consider the prospect of parole. Section 121 of the Corrections and Conditional Release Act, SC 1992 c 20, she noted, gives parole authorities discretion to grant parole any time the offender’s physical or mental health would be seriously damaged by continued confinement.

Fruman J.A. also criticized Hawco J.’s decision to allow Mr. Ferguson to serve his sentence in the community. In reaching this decision, Fruman J.A. explained, the trial judge relied on cases that were decided before the mandatory minimum sentence came into force in 1996. Furthermore, s. 742.1 of the Code expressly excludes mandatory minimum sentences from being served in the community.

Moreover, an individual constitutional exemption, according to Fruman J.A., would run contrary to the legislative objectives of Parliament for creating mandatory minimum sentences. One such objective, pursuant to s. 142 of the Firearms Act, SC 1995, c 39, was to send a message that no-one is immune from punishment for firearm-related deaths. Thus, Fruman J.A. explained, “while police officers may not fit squarely within the crime prevention aspects of the Firearms Act, they are not immune from the problem of firearms-related deaths that Parliament is entitled to address.”

As such, Fruman J.A. concluded that while “the circumstances of this case are tragic for many people,” the fact remains that, “considered as a whole, the gravity of the offence, Ferguson’s personal characteristics, the particular circumstances of this case and the effects of the sentence do not establish that the mandatory minimum is cruel and unusual.” Contra Hawco J. and one of her colleagues in the Alberta Court of Appeal, she accordingly reached the conclusion that “an informed public would not consider a sentence of four years in this case outrageous or intolerable.”

Fruman J.A. then proceeded to evaluate the legitimacy of the constitutional remedy that the trial judge awarded to Mr. Ferguson. Here, she emphatically stated her opposition to the provision of individual constitutional exemptions, advancing a number of policy arguments against them. Perhaps most compelling was a rule of law argument: provision of individual constitutional exemptions, Fruman J.A. asserted, would “permit judges to decide not to impose a mandatory mimimum sentence on a case-by-case basis” and thereby compromise “certainty and predictability in the law.” Furthermore, the purely individual character of the constitutional exemption Mr. Ferguson was awarded not only undermines the “essential mandatory character” of the mandatory minimum sentences established in 236(a) of the Code but also “forecloses any opportunity for Parliament to respond to constitutional concerns by debating and enacting a solution.”

The Issues Before the SCC

The SCC has identified three constitutional questions that it will address in its forthcoming decision in Ferguson:

1. Does the mandatory minimum sentence prescribed by s. 236(a) of the Code, constitute cruel and unusual punishment in the appellant’s case, in violation of s. 12 of the Charter?

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter?

3. If the answer to Question 2 is “no”, does Canadian law recognize the availability of a constitutional exemption on a case-by-case basis from the statutory mandatory minimum sentence set out in s. 236(a) of the Code?

The 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. Whether or not it chooses to grant Mr. Ferguson’s request for an individual constitutional exemption under s. 12 of the Charter, Ferguson will provide the SCC with an opportunity to circumscribe the boundaries of constitutional remedies.

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