R. v. Ferguson case


In the year 1999, Michael Esty Ferguson, an officer of RCMP, was sent to a hospice and asked to probe a grievance from Darren Varley regarding a supposed hit and run along with the vanishing of Mr. Varley’s fiancée. After his arrival, Mr. Ferguson recalled having difficulty getting information from an intoxicated Mr. Varley. In the course of their interaction, there arose a scuffle and Mr. Ferguson accompanied Mr. Varley to detention on public intoxication charges. At the RCMP detachment, there arose a second altercation, which resulted in Mr. Ferguson seriously shooting and injuring Mr. Varley. The officer was subsequently detained and arraigned with second-degree kill charges (SUPREME COURT OF CANADA, 2008).

During Trial

During the trial, Mr. Ferguson was condemned of illegal act manslaughter, a felony that holds a four-year compulsory minimum sentence according to section 236(a) which is in the Canadian Criminal Code . Nonetheless, Mr. Ferguson disputed at trial that the four-year imprisonment resulted to cruel and unusual penalty as stated in the Charter’s section 12. Fascinatingly, Mr. Ferguson asked for a constitutional exclusion for the supposed section 12 violations. Rather than disputing that section 236(a) has to be struck down, he requested the court to award constitutional exemption to him. Mr. Ferguson requested a wholly personal constitutional remedy, challenging the necessity of mandatory least sentencing for illegal act manslaughter stated in the Code’s section 236(a) appliance to his case personally.

Ferguson’s dispute in this regard acquired the attention of Judge Hawco of the Alberta Court. Hawco J. depended on R. v. Morrisey [2000] S.C.R. 90 in which Arbour .J. considered scenarios, in reference to unlawful disregard manslaughter, where a compulsory minimum sentence could be “grossly disproportionate.”

Considering this, Hawco J. concluded that the minimum sentence set by Section 236(a) is foully disproportionate to the conditions of the case.” Finding that the compulsory minimum sentence for illegal act manslaughter resulted to cruel and unusual penalty, and therefore breached the Charter’s section 12. Consequently, Hawco J. continued to award the offender a two-year restricted sentence, to be spent in the community, according to section 742.1  (UNIVERSITY OF ALBERTA, 2008).

During Appeal

Unsurprisingly, the Crown petitioned the trial judge’s decision of the judgment. The Court of Appeal became separated over the verdict. Hawco J.’s verdict was backed by judge Obrien ., who concurred that the least sentence set by section 236(a) was foully disproportionate in Mr. Ferguson’s particular context, and therefore supported the condition of a constitutional exemption. However, Fruman J.A. along with Paperny J.A., who comprised a bulk of the appellate court, discarded the trial judge’s judgment. The SCC as a result disagreed that this was such an extraordinary case, and criticized the judges resolve.

Owing to the seriousness of the crime, the Supreme Court of Canada founded its evaluation on two aspects: whether Mr. Ferguson achieved the mens rea obligation, and his moral responsibility, it established that Ferguson’s skewed and objective intentions when examined, indicate the seriousness of his crime is extremely high. Certainly, the Supreme Court confessed that mitigating factors, for instance, the actuality that Mr. Varley started the argument, reduced Ferguson’s moral responsibility, however, not to the degree that the compulsory minimum sentence is foully inconsistent in his case. Therefore, the Supreme Court of Canada dismissed the constitutional exemption and upheld the minimum sentencing. (ABlawg, 2008).


I find, an individual constitutional exclusion, by the judge as running conversely to the legislative goals of Parliament for establishing compulsory minimum sentences. According to section 142 contained in the Firearms Act S.C., the conveyed message is that nobody is protected from a sentence for firearm-oriented deaths.  However, while law enforcement officers may not fit directly in the crime deterrence factors contained in the Firearms Act , police officers are not protected from the issue of firearms-oriented deaths that court is allowed to address  (The Court, 2008).

Furthermore, Hawco J.’s verdict to permit Mr. Ferguson to spend his sentence in the society is ill-informed. In reaching this resolution, the trial judge depended on cases that were previously decided prior to the compulsory minimum sentence was established in 1996. Additionally, the code’s section 742.1 specifically excludes compulsory minimum sentences from being spent in the public.

As illustrated at trial, as previous R.C.M.P. law enforcement personnel, the offender, for his individual safety, would possibly serve 23 hours on a daily basis in lone confinement. This reflection was influential in the trial judge’s judgment that the compulsory minimum sentence for illegal act manslaughter, that is, in Mr. Ferguson’s case, breached the Charter’s section 12. Considering this, the trial judge failed to consider the view of parole. Section 121 of the Corrections and Conditional Release Act S.C., offers a provision for parole at any time the criminal’s physical or psychological health would be gravely damaged by sustained confinement. This was however was not the case based on his crime the offender was supposed to serve his minimum sentence in solitary since he experienced no health problems. 

Whilst the conditions of the case are sad for lots of people, the truth remains that, measured as a whole, the seriousness of the crime, Ferguson’s individual characteristics, the specific situation of the court case and the impacts of the verdict do not institute that the compulsory least sentence is cruel and unusual. I consequently find the resolution that a four years imprisonment in this case is neither disgraceful nor intolerable.”

Further evaluating the legality of the constitutional exclusion that the trial judge granted to the offender, possibly most convincing factor would be a decree of law argument: stipulation of personal constitutional exclusions. This would authorize judges to choose not to inflict a compulsory least verdict on case-by-case foundations and in so doing this would compromise public’s confidence in the law. Additionally, the purely personal character of the constitutional exclusion Mr. Ferguson was granted not only demoralizes the necessary mandatory nature of the mandatory minimum verdicts stated in 236(a) but also additionally forecloses any chance for Parliament to react to constitutional alarms by discussing and enacting a solution


The Bill C-10,Safe Streets and Communities Act, among them is a legislation that influences public safety laws which reduces the capacity of judges to sentence specific criminals to house arrest.This would have prevented the judge from awarding Michael Esty Ferguson the liberty to serve his sentence at the community. The bill aims at reducing the judges’ personal resolutions against the constitution. According to the Bill the offender is a dangerous person who poses a threat to the community’s safety. This would have directed the judge to uphold the constitutional minimum sentencing provision. Therefore, Mr. Fergusson would have been forced to serve the minimum sentence and in jail.


ABlawg. (2008). The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm | ABlawg. . Retrieved July 20, from http://ablawg.ca/2008/03/13/the-death-of-constitutional-exemptions-alberta-rcmp-officer-sentenced-to-mandatory-four-years-for-manslaughter-with-a-firearm/

The Court. (2008). The Court » Blog Archive » Constitutional Exemptions to Mandatory Minimum Sentences: An Unambiguous Ruling in R. v. Ferguson. . Retrieved July 20, from http://www.thecourt.ca/2008/03/04/constitutional-exemptions-to-mandatory-minimum-sentences-an-unambiguous-ruling-in-r-v-ferguson/

SUPREME COURT OF CANADA. (2008). SCC Cases (Lexum) – R. v. Ferguson. Retrieved July 20, from http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2406/index.do

UNIVERSITY OF ALBERTA. (2008). Supreme Court Upholds Mandatory Minimum Sentence and Refuses to Grant Constitutional Exemption – The Centre for Constitutional Studies. Retrieved July 20, from http://ualawccsprod.srv.ualberta.ca/ccs/index.php/constitutional-issues/the-charter/legal-rights-sections-7-14/700-supreme-court-upholds-mandatory-minimum-sentence-and-refuses-to-grant-constitutional-exemption

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