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Sentencing debate still not settled

|Written By Tim Naumetz

OTTAWA - A Supreme Court of Canada ruling that upheld a mandatory minimum sentence for a Mountie convicted of manslaughter is unlikely to be a crucial precedent for a raft of new mandatory minimum laws, a leading Ottawa defence lawyer says.

‘It’s still possible that mandatory minimums will be found not to be constitutional in a given case, depending on the circumstances,’ says Mark Ertel.

The recent ruling was hailed as a “landmark” judgment regarding mandatory minimum sentences, with news reports emphasizing the fact it came out a day after Royal assent for the Conservative government’s controversial Tackling Violent Crime Act.

But the SCC decision in fact centred on a judge’s mistaken interpretation of jury considerations and his incorrect application of judicial discretion meant for entirely different circumstances, notes Mark Ertel, president of the Defence Counsel Association of Ottawa.

“I’m not sure that this settles it,” Ertel tells Law Times. “It’s still possible that mandatory minimums will be found not to be constitutional in a given case, depending on the circumstances.”

The R. v. Ferguson decision on the Alberta Mountie’s case was unanimous, written by Chief Justice Beverley McLachlin.

Two trials ended with hung juries before a third resulted in the manslaughter verdict and subsequent appeals to the Alberta Court of Appeal and the Supreme Court of Canada.

It all began after RCMP Const. Michael Esty Ferguson arrived at a tumultuous hospital scene in Pincher Creek, Alta. at 3 a.m. on Oct. 3, 1999.

There had been a drunken brawl in a bar parking lot the previous night and Darren Varley - who would later that morning be shot dead by Ferguson in an RCMP cell - was at the hospital with his sister and several friends in the aftermath of the fight.

The bar altercation began after Varley lost track of his fiancée in the bar and suspected she had gotten into a van with strangers.

Still intoxicated at the hospital, Varley “insistently” demanded Ferguson find his fiancée, the court history says. Instead, Ferguson grabbed Varley and punched him in the jaw, according to testimony from witnesses.

Ferguson handcuffed Varley, placed him in an RCMP cruiser, and Varley kicked out one of its windows.

Ferguson took Varley to the detachment and led him into a cell. An RCMP booking officer and an inmate in the adjacent cell, Herman No Chief, heard two shots.

Ferguson later testified Varley had pulled his bulletproof vest over his head and face and grabbed his sidearm. He made a statement before trial, which was supported by expert evidence and accepted by the trial judge, that he had regained control of the gun when the shots were fired.

The first bullet went into Varley’s stomach; the second, fatal shot sent a bullet into his head.

The booking officer and No Chief later testified they each believed up to three seconds passed between the two gunshots.

That was crucial evidence for the Supreme Court judges, who ruled the trial judge erred in a sentencing inquiry, as he reached a decision that the four-year mandatory minimum for manslaughter involving a firearm would be “grossly disproportionate.”

The Supreme Court ruled the trial judge erred in three ways: by attempting to go beyond the sentencing issues he was required to deal with, by attempting to reconstruct the jury’s logic, and by finding facts inconsistent with the jury’s finding and the evidence.

First, the judge erred by speculating that the jury concluded the first shot was fired in self defence, when in fact the verdict did not “unequivocally indicate” a particular character “unequivocally indicate” a particular characterization of either of the shots, the Supreme Court said.

The judge also developed a theory, outside of the jury’s verdict and contrary to the evidence, that the second shot was “instantaneous and instinctive, the virtually automatic result of his police training,” the Supreme Court ruling says.

Because of that theory, the judge found Ferguson was not acting in anger when he fired the second shot.

“This finding was critical to the trial judge’s conclusion that the minimum sentence of four years prescribed by s. 236(a) of the Criminal Code constituted cruel and unusual punishment, violating s. 12 of the Charter,” McLachlin writes.

But, if the second shot was instantaneous and instinctive, it would have to have been a continuation of the first shot, her ruling continues.

“Had the trial judge found that the second shot was instantaneous and instinctive, he should have considered the two shots together as a single transaction, and would have been required by the jury’s verdict to hold that this transaction, in its entirety, did not constitute self-defence,” she writes.

McLachlin adds the “instinctive” explanation did not “sit comfortably” with uncontradicted evidence about the circumstances of the shootings, namely the three-second time gap between the two shots that was estimated by both the booking officer and the other inmate, Herman No Chief.

“This was not a case of immediately successive shots,” writes McLachlin, adding that conclusion was supported by the fact Const. Ferguson’s firearm did not permit rapid, automatic second shots.

“I conclude 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,” she adds.

The other main arguments in the Supreme Court decision dealt with the judge’s application of Charter s. 24(1), a little-known clause that allows anyone whose Charter rights have been infringed or denied to obtain “such remedy as the court considers appropriate and just in the circumstances.”

It is likely the most pertinent part of the decision for future cases involving mandatory minimum sentences.

The trial judge used the clause to avert the mandatory minimum for Ferguson, without having to strike down the Criminal Code section that carries the penalty, once he concluded the four-year minimum violated the Charter.

McLachlin writes it was not necessary to address the judge’s use of 24(1) - called a constitutional exemption - since she had already found the trial judge incorrectly concluded the sentence contravened the Charter in Ferguson’s case.

But she notes there has been “considerable debate and disagreement” in lower courts about whether the remedy of a constitutional exemption under the clause is available. “The matter having been fully argued, it is appropriate to settle the question of whether a constitutional exemption would have been available to Const. Ferguson, had the minimum sentence violated s. 12 of the Charter,” she writes.

In the remaining 17 pages of her 37-page ruling, Justice McLachlin concludes the answer was negative.

“Section 24(1) has been generally seen - at least until now - as providing a case-by-case remedy for unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not challenged,” she writes.

McLachlin notes the other remedy, s. 52(1) of the Constitution Act, offers no discretion to judges. If a law is found in violation of the Charter, s. 52(1) automatically renders it “null and void” - the normal route when Charter violations are found.

She says precedents suggest “a cautionary note” should be taken with the use of constitutional exemptions. They lead to an uneven playing field for the accused, with each case up to individual judges, and interfere with the actions of Parliaments that pass laws with mandatory minimum penalties, McLachlin says.

“In this case, the effect of granting a constitutional exemption would be to so change the legislation as to create something different in nature from what Parliament intended,” she writes. “It follows that a constitutional exemption should not be granted.”

Even though the ruling might not affect Charter appeals in subsequent cases involving mandatory minimum sentences, another leading Ottawa lawyer says it could sway the minds of judges.

The ruling could have a “chilling effect” on the concept of judicial independence, defence counsel Heather Perkins-McVey tells Law Times.

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