R. v. Ferguson, 2008 SCC 6 (2008)

Supreme Court of Canada

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R. v. Ferguson, 2008 SCC 6 (2008)

SUPREME COURT OF CANADA

Citation: R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6

Date: 20080229

Docket: 31692

Between:

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

Interveners

Coram: 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, [2008] 1 S.C.R. 96, 2008 SCC 6

Michael Esty Ferguson Appellant v.

Her Majesty The Queen Respondent and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec and Canadian Civil Liberties

Association Interveners

Indexed as: R. v. Ferguson

Neutral 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 alberta

Constitutional 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-yea...

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