R. v. Ferguson, 2008 SCC 6 (2008)
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SUPREME COURT OF CANADACitation: R. v. Ferguson,  1 S.C.R. 96, 2008 SCC 6Date: 20080229Docket: 31692Between:Michael Esty FergusonAppellant v.Her Majesty the QueenRespondent- and -Attorney General of Canada, Attorney General of Quebec, Attorney General of Ontario and Canadian Civil Liberties AssociationIntervenersCoram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.Reasons for Judgment:(paras. 1 to 75)McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)______________________________R. v. Ferguson,  1 S.C.R. 96, 2008 SCC 6Michael Esty Ferguson Appellant v.Her Majesty The Queen Respondent andAttorney General of Canada, Attorney General of Ontario,Attorney General of Quebec and Canadian Civil LibertiesAssociation IntervenersIndexed as: R. v. FergusonNeutral citation: 2008 SCC 6.File No.: 31692.2007: November 13; 2008: February 29.Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.on appeal from the court of appeal for albertaConstitutional law - Charter of Rights - Cruel and unusual punishment - Detainee being held in cell at RCMP detachment shot by police officer during altercation - Police officer convicted of manslaughter committed with use of firearm - Criminal Code providing for mandatory minimum four-year sentence - Whether minimum sentence constitutes cruel and unusual punishment in circumstances of this case - If so, whether trial judge entitled to grant constitutional exemption from four-year minimum and impose lesser sentence - Constitution Act, 1982, s. 52 - Canadian Charter of Rights and Freedoms, ss. 12, 24(1) - Criminal Code, R.S.C. 1985, c. C-46, s. 236(a).Constitutional law - Charter of Rights - Remedy - Constitutional exemption - Availability - Whether constitutional exemption under s. 24(1) of Canadian Charter of Rights and Freedoms available to accused as remedy in particular case where minimum sentence of imprisonment found to be cruel and unusual punishment contrary to s. 12 of Charter - Whether appropriate remedy is declaration pursuant to s. 52 of Constitution Act, 1982 that law imposing such punishment is inconsistent with Charter.During an altercation with a detainee held in a cell at an RCMP detachment, the accused, an RCMP officer, shot and killed the detainee. The accused was charged with second-degree murder but was convicted by a jury of the lesser offence of manslaughter. Notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for manslaughter with a firearm, the trial judge imposed a conditional sentence of two years less a day. He granted the accused a constitutional exemption from the four-year sentence because, on the circumstances of this case, he found that the minimum mandatory sentence constituted cruel and unusual punishment in violation of s. 12 of the Canadian Charter of Rights and Freedoms. The majority of the Court of Appeal overturned that sentence and held that the mandatory minimum must be imposed.Held: The appeal should be dismissed.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. In the absence of any s. 12 violation, the trial judge's proper course in the circumstances was to apply the four-year minimum sentence.  The appropriateness of the minimum sentence of four years that Parliament has prescribed for the offence of manslaughter committed with the use of a firearm depends on what the jury concluded about the accused's conduct. 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 the accused. The sentencing inquiry was shaped by a four-year mandatory minimum sentence prescribed by s. 236(a) of the Criminal Code and the only issues were whether the sentence should be more than four years, or whether the facts of the case were such that a four-year sentence would be grossly disproportionate. The trial judge correctly concluded that on the basis of the jury's verdict, he must find facts consistent with the jury's rejection of both self-defence and intent for murder. On the basis of the jury's rejection of intent for murder, the trial judge then properly concluded that the jury had found that when he fired the second shot, the accused neither intended to cause death nor bodily harm that he knew was likely to cause death. The trial judge, however, erred when he went on to make detailed findings of fact on the accused's conduct and went beyond what was required to deal with the sentencing issues before him. It was not open to him to attempt to reconstruct the logical process of the jury and, more critically, to develop a theory to support the jury's verdict which was not only speculative, but contrary to the evidence. When the erroneous findings of the trial judge are set aside, no basis remains for concluding that the four-year mandatory minimum sentence prescribed by Parliament constitutes cruel and unusual punishment on the facts of this case.  [19-21]  In any event, a constitutional exemption is not an appropriate remedy for a s. 12 violation. If the law imposing a minimum sentence is found to be unconstitutional on the facts of a particular case, it should be declared inconsistent with the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982. The arguments for a constitutional exemption under s. 24(1) of the Charter are outweighed and undermined by counter-considerations. First, while the availability of constitutional exemptions for mandatory minimum sentencing laws has not been conclusively decided, the weight of authority thus far is against them and sounds a cautionary note. Second, since Parliament's intention in passing mandatory minimum sentence laws is to remove judicial discretion to impose a sentence below the stipulated minimum, to allow courts to grant constitutional exemptions for mandatory minimum sentences would directly contradict Parliament's intent and represent an inappropriate intrusion into the legislative sphere. Third, it is apparent that s. 52(1) of the Constitution Act, 1982 and s. 24(1) of the Charter serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect; s. 24(1), by contrast, provides a remedy for government acts that violate Charter rights. Fourth, constitutional exemptions for mandatory minimum sentence laws buy flexibility at the cost of undermining the rule of law and the values that underpin it: certainty, accessibility, intelligibility, clarity and predictability. Allowing unconstitutional laws to remain on the books deprives Parliament of certainty as to the constitutionality of the law in question and thus of the opportunity to remedy it. In granting constitutional exemptions, courts would be altering the state of the law on constitutional grounds without giving clear guidance to Parliament as to what the Constitution requires in the circumstances.    [52-56]  [67-69] [73-74]Cases CitedReferred to: R. v. Morrisey,  2 S.C.R. 90, 2000 SCC 39; R. v. Goltz,  3 S.C.R. 485; R. v. Birchall (2001), 158 C.C.C. (3d) 340, 2001 BCCA 356; R. v. Smith,  1 S.C.R. 1045; R. v. Wiles,  3 S.C.R. 895, 2005 SCC 84; R. v. Brown,  2 S.C.R. 518; R. v. Braun (1995), 95 C.C.C. (3d) 443; R. v. Fiqia (1994), 162 A.R. 117; R. v. Gardiner,  2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71; R. v. Thatcher,  1 S.C.R. 652; R. v. Luxton,  2 S.C.R. 711; Schachter v. Canada,  2 S.C.R. 679; R. v. Kelly (1990), 59 C.C.C. (3d) 497; R. v. Madeley (2002), 160 O.A.C. 346; R. v. Desjardins (1996), 182 N.B.R. (2d) 321; R. v. McGillivary (1991), 62 C.C.C. (3d) 407; R. v. Netser (1992), 70 C.C.C. (3d) 477; R. v. Chief (1989), 51 C.C.C. (3d) 265; R. v. Kumar (1993), 85 C.C.C. (3d) 417; R. v. Lapierre (1998), 123 C.C.C. (3d) 332; R. v. Chabot (1992), 77 C.C.C. (3d) 371; Osborne v. Canada (Treasury Board),  2 S.C.R. 69; R. v. Rose,  3 S.C.R. 262; R. v. Seaboyer,  2 S.C.R. 577; Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203; Vriend v. Alberta,  1 S.C.R. 493; R. v. Sharpe,  1 S.C.R. 45, 2001 SCC 2; R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295; R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713; Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624; Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256, 2006 SCC 6; R. v. Edwards,  1 S.C.R. 128; R. v. 974649 Ontario Inc.,  3 S.C.R. 575, 2001 SCC 81; R. v. Demers,  2 S.C.R. 489, 2004 SCC 46; Reference re Secession of Quebec,  2 S.C.R. 217.Statutes and Regulations CitedCanadian Charter of Rights and Freedoms, ss. 1, 12, 24.Constitution Act, 1982, s. 52.Criminal Code, R.S.C. 1985, c. C-46, ss. 34(2), 220(a), 236(a), 718 to 718.2, 724(2), (3)(d), (e).Authors CitedBingham, Lord. "The Rule of Law" (2007), 66 Cambridge L.J. 67.Fuller, Lon L. The Morality of Law, 2nd ed. New Haven: Yale University Press, 1969.Rosenberg, Morris, and StÃ©phane Perrault. "Ifs and Buts in Charter Adjudication: The Unruly Emergence of Constitutional Exemptions in Canada" (2002), 16 S.C.L.R. (2d) 375.Sankoff, Peter. "Constitutional Exemptions: Myth or Reality?" (1999-2000), 11 N.J.C.L. 411.APPEAL from a judgment of the Alberta Court of Appeal (Fruman, Paperny and O'Brien JJ.A.) (2006), 65 Alta. L.R. (4th) 44, 397 A.R. 1, 384 W.A.C. 1, 212 C.C.C. (3d) 161, 41 C.R. (6th) 97, 145 C.R.R. (2d) 309,  12 W.W.R. 1,  A.J. No. 1150 (QL), 2006 CarswellAlta 1216, 2006 ABCA 261, varying the sentence imposed by Hawco J. (2004), 39 Alta. L.R. (4th) 166, 372 A.R. 309,  4 W.W.R. 737, ...
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