R. v. Ferguson (M.E.) (2008), 425 A.R. 79 (SCC);
418 W.A.C. 79
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
Temp. Cite: [2008] A.R. TBEd. FE.172
Michael Esty Ferguson (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Canada, Attorney General of Quebec, Attorney General of Ontario and Canadian Civil Liberties Association (intervenors)
(31692; 2008 SCC 6; 2008 CSC 6)
Indexed As: R. v. Ferguson (M.E.)
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
February 29, 2008.
Summary:
The accused R.C.M.P. officer was convicted of manslaughter in the shooting death of a detainee. The detainee was intoxicated, belligerent and attempting to escape. The detainee grabbed the accused’s gun. Following a struggle to retake the gun, the accused twice shot the detainee (abdomen and head). The jury determined that the second shot was unnecessary and constituted manslaughter. Section 236(a) of the Criminal Code provided a minimum four year sentence for manslaughter using a firearm. The accused sought a constitutional exemption from s. 236(a), submitting that, in this case, a four year sentence would constitute cruel and unusual punishment contrary to s. 12 of the Charter.
The Alberta Court of Queen’s Bench, in a judgment reported (2004), 372 A.R. 309, granted a constitutional exemption and sentenced the accused to a conditional sentence of two years less a day, less 210 days for 70 days of pre-trial custody. The Crown appealed, submitting that (1) the trial judge misapplied the test for determining that a four year sentence constituted cruel and unusual punishment, incorrectly finding a Charter rights denial and (2) there was no legal authority to grant individual constitutional exemptions from mandatory minimum sentences.
The Alberta Court of Appeal, O’Brien, J.A., dissenting, in a judgment reported (2006), 397 A.R. 1; 384 W.A.C. 1, allowed the appeal on both grounds and substituted the minimum sentence of four years’ imprisonment. The accused appealed.
The Supreme Court of Canada dismissed the appeal. As applied to the facts found by the jury respecting the accused’s offence, the mandatory minimum sentence of four years’ imprisonment was not grossly disproportionate and did not violate the accused’s right not to be subjected to cruel and unusual punishment under s. 12 of the Charter. Had the minimum sentence violated the accused’s s. 12 Charter rights, a constitutional exemption would not have been available. The remedy would be a declaration under s. 52(1) of the Constitution Act, 1982, that s. 236(a) was unconstitutional and of no force and effect (i.e. struck down).
Civil Rights – Topic 3829
Cruel and unusual treatment or punishment – What constitutes – Mandatory minimum and consecutive sentences – [See first
Civil Rights – Topic 8380.8
].
Civil Rights – Topic 8367
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – General – The Supreme Court of Canada distinguished between the two remedial provisions governing remedies for Charter violations, being s. 24(1) of the Charter (appropriate and just remedy) and s. 52(1) of the Constitution Act, 1982 (laws inconsistent with Charter of no force and effect) – The court stated, inter alia, that “section 24(1) has generally been seen … as providing a case-by-case remedy for unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not challenged. The other remedy section, s. 52(1) of the Constitution Act, 1982, confers no discretion on judges. It simply provides that laws that are inconsistent with the Charter are of no force and effect to the extent of the inconsistency” – See paragraph 35.
Civil Rights – Topic 8380.2
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Declaration of statute invalidity – [See second
Civil Rights – Topic 8380.8
].
Civil Rights – Topic 8380.8
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Statute deemed inapplicable (incl. doctrine of constitutional exemption) – The accused, a 19 year R.C.M.P. veteran, during an altercation with an intoxicated, belligerent 23 year old detainee who had grabbed his gun, retook his gun and shot the detainee twice (abdomen and head) – There was an interval, possibly three seconds, between the two shots – A jury found the accused guilty of manslaughter – Although it was unclear from the jury’s verdict whether the first shot was in self-defence, the second shot clearly was not – Section 236(a) of the Criminal Code provided a minimum four year sentence for manslaughter using a firearm – The judge granted the accused a constitutional exemption from s. 236(a), as a four year sentence was so grossly disproportionate in light of the accused’s low moral blameworthiness as to constitute cruel and unusual punishment (Charter, s. 12) – The Alberta Court of Appeal disagreed – Four years’ imprisonment, in all of the circumstances, was not “grossly” disproportionate – The offence was very serious and the accused’s moral blameworthiness was in fact high – “An informed public would not consider a sentence of four years in this case to be outrageous or intolerable” – The Supreme Court of Canada agreed, stating that “there is no basis for concluding that the four-year minimum sentence prescribed by Parliament amounts to cruel and unusual punishment on the facts of this case” – Having found no Charter violation, it was unnecessary to determine whether a constitutional exemption would have been available – However, the court opined that if the minimum sentence violated the accused’s s. 12 Charter rights, the only remedy would be to find s. 236(a) inconsistent with the Charter and declare it to be of no force and effect under s. 52(1) of the Constitution Act, 1982 – Permitting s. 236(a) to stand in violation of s. 12, subject to constitutional exemptions in particular cases, was not an available remedy – See paragraphs 7 to 75.
Civil Rights – Topic 8380.8
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Statute deemed inapplicable (incl. doctrine of constitutional exemption) – The Supreme Court of Canada opined that a constitutional exemption under s. 24(1) of the Charter was not available to remedy a mandatory minimum sentence found to constitute cruel and unusual punishment under s. 12 of the Charter – The only remedy was to strike down the section imposing the minimum sentence under s. 52(1) of the Constitution Act, 1982, as being of no force and effect – The court stated that (1) while the court had yet to conclusively decide the issue, the weight of authority so far was that a constitutional exemption was not available; (2) granting a constitutional exemption would effectively change the legislation to create something different than what Parliament intended, intruding upon Parliament’s function by contradicting Parliament’s intent in passing mandatory minimum sentence legislation; (3) the highly discretionary language in s. 24(1) was appropriate to control unconstitutional acts, but s. 52(1) targeted the unconstitutionality of laws in a direct non-discretionary way: laws were of no force and effect to the extent that they were unconstitutional; and (4) constitutional exemptions for mandatory minimum sentence laws raise concerns related to the rule of law and the values that underpin it: certainty, accessibility, intelligibility, clarity and predictability – See paragraphs 33 to 73.
Criminal Law – Topic 5809.3
Sentencing – General – Where factual basis for jury’s verdict unclear – The accused was convicted of manslaughter – There was conflicting evidence at trial and the verdict did not reveal which facts the jurors relied on – In sentencing, the judge was required to accept as proven all express or implied facts essential to the jury’s verdict (Criminal Code, s. 724(2)(a)) and was empowered to find any other relevant facts disclosed by the trial evidence (s. 724(2)(b)) and reject as fact any evidence consistent only with a verdict rejected by the jury – The Alberta Court of Appeal held that the judge erred in making fact findings that were erroneous and inconsistent with the jury’s verdict – The court stated that “in an effort to respect the jury’s verdict, the judge attributed other fact findings to what the jury must have found or must have thought. However, as there was conflicting evidence at trial and a number of ways individual jurors could have arrived at a verdict of manslaughter, the judge should have come to an independent determination of the relevant facts instead of attempting to follow the logical process of the jury.” – The Supreme Court of Canada agreed and discussed the principles to be applied by a sentencing judge in determining the facts necessary for sentencing from the issues before the jury and from the jury’s verdict – See paragraphs 17 to 28.
Criminal Law – Topic 5882
Sentence – Manslaughter – [See first
Civil Rights – Topic 8380.8
].
Cases Noticed:
R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 10].
R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 10].
R. v. Birchall (R.D.) (2001), 155 B.C.A.C. 273; 254 W.A.C. 273; 158 C.C.C.(3d) 340; 2001 BCCA 356, refd to. [para. 11].
R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 14].
R. v. Wiles (P.N.), [2005] 3 S.C.R. 895; 343 N.R. 201; 240 N.S.R.(2d) 1; 763 A.P.R. 1; 2005 SCC 84, refd to. [para. 14].
R. v. Brown (K.F.), [1991] 2 S.C.R. 518; 125 N.R. 363; 93 Sask.R. 81; 4 W.A.C. 81, refd to. [para. 17].
R. v. Braun (C.D.), [1995] 3 W.W.R. 402; 97 Man.R.(2d) 172; 79 W.A.C. 172; 95 C.C.C.(3d) 443 (C.A.), refd to. [para. 17].
R. v. Fiqia (1994), 162 A.R. 117; 83 W.A.C. 117 (C.A.), refd to. [para. 18].
R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 18].
R. v. Lawrence (1987), 58 C.R.(3d) 71 (Ont. H.C.), refd to. [para. 18].
R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 22].
R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 36].
Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 39].
R. v. Kelly, Payne and Kelly (1990), 41 O.A.C. 32; 59 C.C.C.(3d) 497 (C.A.), refd to. [para. 43].
R. v. Madeley (K.) (2002), 160 O.A.C. 346 (C.A.), refd to. [para. 43].
R. v. Desjardins (F.) (1996), 182 N.B.R.(2d) 321; 463 A.P.R. 321 (C.A.), refd to. [para. 43].
R. v. McGillivary (1991), 89 Sask.R. 289; 62 C.C.C.(3d) 407 (C.A.), refd to. [para. 43].
R. v. Netser (1992), 70 C.C.C.(3d) 477 (N.W.T.C.A.), refd to. [para. 43].
R. v. Chief (1989), 51 C.C.C.(3d) 265 (Y.T.C.A.), refd to. [para. 43].
R. v. Kumar (R.) (1993), 36 B.C.A.C. 81; 58 W.A.C. 81; 85 C.C.C.(3d) 417 (C.A.), refd to. [para. 43].
R. v. LaPierre (1998), 123 C.C.C.(3d) 332 (Que. C.A.), refd to. [para. 43].
R. v. Chabot (1992), 77 C.C.C.(3d) 371 (Que. C.A.), refd to. [para. 43].
Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 44].
R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 44].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 45].
Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 46].
Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 50].
R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 50].
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 59].
R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 59].
Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 60].
Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 60].
R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 61].
R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 61].
R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 63].
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 68].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 12 [para. 9]; sect. 24(1) [para. 35].
Constitution Act, 1982, sect. 52(1) [para. 35].
Criminal Code, R.S.C. 1985, c. C-46, sect. 236(a) [para. 8].
Authors and Works Noticed:
Bingham, The Rule of Law (2007), 66 Cambridge L.J. 67, p. 69 [para. 68].
Fuller, Lon L., The Morality of Law (2nd Ed. 1969), pp. 33 to 39 [para. 68].
Rosenberg, Morris, and Perrault, Stéphane, Ifs and Buts in Charter Adjudication: The Unruly Emergence of Constitutional Exemptions in Canada (2002), 16 S.C.L.R.(2d) 375, pp. 380 to 382 [para. 59].
Sankoff, Peter, Constitutional Exemptions: Myth or Reality? (1999-2000), 11 N.J.C.L. 411, pp. 432 to 434, 438 [para. 59].
Counsel:
Noel C. O’Brien, for the appellant;
Richard A. Saull and Michael Conner, for the respondent;
Robert J. Frater and Nancy Dennison, for the intervenor, Attorney General of Canada;
David Finley and Kimberley Crosbie, for the intervenor, Attorney General of Ontario;
Jean-Vincent Lacroix and Gilles Laporte, for the intervenor, Attorney General of Quebec;
Andrew K. Lokan and Caroline V. Jones, for the intervenor, Canadian Civil Liberties Association.
Solicitors of Record:
O’Brien Devlin MacLeod, Calgary, Alberta, for the appellant;
Attorney General of Alberta, Calgary, Alberta, for the respondent;
Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;
Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;
Paliare, Roland, Rosenberg, Rothstein, Toronto, Ontario, for the intervenor, Canadian Civil Liberties Association.
This appeal was heard on November 13, 2007,
before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.
On February 29, 2008, McLachlin, C.J.C., delivered the following judgment in both official languages for the Court.
