Case information
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31692
Michael Esty Ferguson v. Her Majesty the Queen
(Alberta) (Criminal) (By Leave)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
v.
Other parties
Counsel
Party: Ferguson, Michael Esty
Counsel
Suite 1310, 530 - 8th Avenue SW
Calgary, Alberta
T2P 3S8
Telephone: (403) 265-5616
FAX: (403) 264-8146
Email: nobrien@obriendevlin.com
Agent
300 - 50 O'Connor Street
Ottawa, Ontario
K1P 6L2
Telephone: (613) 232-7171
FAX: (613) 231-3191
Email: mmajor@langmichener.ca
Party: Her Majesty the Queen
Counsel
Michael Conner
1620, 639 - 5th Avenue SW
Calgary, Alberta
T2P 0M9
Telephone: (403) 297-6005
FAX: (403) 297-3453
Email: rsaull@gov.mb.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Attorney General of Canada
Counsel
Nancy Dennison
Bank of Canada Building
234 Wellington Street, Room 1161
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4763
FAX: (613) 954-1920
Email: robert.frater@justice.gc.ca
Party: Attorney General of Quebec
Counsel
Jean-Vincent Lacroix
1200 Rte de l'Église
2e Étage
Ste-Foy, Quebec
G1V 4M1
Telephone: (418) 643-1477
FAX: (418) 644-7030
Email: glaporte@justice.gouv.qc.ca
Agent
111, rue Champlain
Gatineau, Quebec
J8X 3R1
Telephone: (819) 503-2178
FAX: (819) 771-5397
Email: p.landry@noelassocies.com
Party: Attorney General of Ontario
Counsel
Kimberley Crosbie
720 Bay Street
10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4587
FAX: (416) 326-4656
Email: david.finley@ontario.ca
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Canadian Civil Liberties Association
Counsel
Caroline V. Jones
501 - 250 University Avenue
Toronto, Ontario
M5H 3E5
Telephone: (416) 646-4300
FAX: (416) 646-4301
Email: andrew.lokan@paliareroland.com
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Charter of Rights - Criminal - Cruel and unusual treatment or punishment - Sentencing - Constitutional exemptions - Whether Canadian law recognizes the legal availability of a stand alone “constitutional exemption” from a mandatory minimum sentence as a remedy for an individual who establishes that the sentence is “cruel and unusual punishment” - Whether the Alberta Court of Appeal erred in failing to uphold the trial judge’s decision to grant such a remedy.
A jury found the applicant guilty of manslaughter for the fatal shooting of Darren Varley. Manslaughter requires a mandatory minimum sentence of four years imprisonment. At the time of the shooting, the applicant, an on-duty member of the Royal Canadian Mounted Police, was attempting to place Varley in a police cell. Varley assaulted the applicant and gained control of his police revolver. The applicant regained control of the gun and fired two shots. Despite the fact that the applicant’s fire arms training with the RCMP and other approved agencies had trained him to fire a second shot, the jury concluded that there was no need for a second shot.
Lower court rulings
Court of Queen’s Bench of Alberta
Applicant convicted by jury of manslaughter
Court of Queen’s Bench of Alberta
05547997Q1, 2004 ABQB 928
Declaration constitutional exemptions from mandatory minimum sentences are available and an exemption is appropriate in this case. Applicant sentenced to a conditional sentence of 2 years less a day to be served in the community with credit for time serv
Court of Appeal of Alberta (Calgary)
0501-0001-A, 2006 ABCA 261
Appeal from sentence allowed; Declaration constitutional exemptions from mandatory minimum sentences are not available nor is an exemption appropriate in this case. Accused sentenced to mandatory minimum sentence of four years imprisonment, less credit fo
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
Date | Proceeding | Filed By (if applicable) |
---|---|---|
2008-03-12 | Appeal closed | |
2008-03-03 | Formal judgment sent to the registrar of the court of appeal and all parties | |
2008-03-03 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
2008-02-29 |
Judgment on the appeal rendered, CJ Ba Bi LeB De F Abe Cha Ro, The appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 0501-0001-A, 2006 ABCA 261, dated September 25, 2006, heard on November 13, 2007, is dismissed. Dismissed |
|
2008-02-26 | Correspondence received from, Marie-France Major dated Feb. 26, 2008. Re: Will not attend the lock-up | Michael Esty Ferguson |
2008-02-25 | Correspondence received from, Pierre Landry dated Feb. 25, 2008. Re: Will not attend the lock-up | Attorney General of Quebec |
2008-02-07 | Media lock-up request accepted | |
2008-02-06 | Media lock-up consent form received from | Michael Esty Ferguson |
2008-01-29 | Media lock-up consent form received from | Her Majesty the Queen |
2008-01-22 | Media lock-up letter, consent form and undertaking sample sent to all parties | |
2008-01-08 | Media lock-up requested or proposed | |
2007-11-27 | Transcript received, (100 pages) | |
2007-11-13 | Judgment reserved OR rendered with reasons to follow | |
2007-11-13 | Respondent's condensed book, submitted in Court (14 copies) | Her Majesty the Queen |
2007-11-13 | Appellant's condensed book, submitted in Court (14 copies) | Michael Esty Ferguson |
2007-11-13 | Acknowledgement and consent for video taping of proceedings, from all parties | |
2007-11-13 |
Hearing of the appeal, 2007-11-13, CJ Ba Bi LeB De F Abe Cha Ro Judgment reserved |
|
2007-11-09 | Appellant's book of authorities, submitted in Court (paper form) (12 copies), Completed on: 2007-11-13 | Michael Esty Ferguson |
2007-11-07 |
Order by, Cha, FURTHER TO THE ORDER dated August 21, 2007, in which Charron J. granted leave to intervene to the Canadian Civil Liberties Association; IT IS HEREBY FURTHER ORDERED THAT the said intervener is granted permission to present oral argument not exceeding fifteen (15) minutes at the hearing of the appeal. Granted |
|
2007-11-06 | Notice of appearance, David Finley & Kimberley Crosbie will be present at the hearing | Attorney General of Ontario |
2007-10-30 | Notice of appearance, Robert J. Frater & Nancy Dennison will be present at the hearing | Attorney General of Canada |
2007-10-29 | Notice of appearance, Gilles Laporte & Jean-Vincent Lacroix will be present at the hearing | Attorney General of Quebec |
2007-10-26 | Notice of appearance, Noel C. O'Brien, Q.C. will be present at the hearing | Michael Esty Ferguson |
2007-10-25 | Notice of appearance, Andrew K. Lokan & Caroline V. Jones will be present at the hearing | Canadian Civil Liberties Association |
2007-10-25 | Notice of appearance, Riichard A. Saull & Michael Conner will be present at the hearing | Her Majesty the Queen |
2007-10-16 | Intervener's book of authorities, Completed on: 2007-10-18 | Canadian Civil Liberties Association |
2007-10-16 | Intervener's factum, Completed on: 2007-10-18 | Canadian Civil Liberties Association |
2007-10-16 | Intervener's factum - AG on constitutional question, Completed on: 2007-10-16 | Attorney General of Ontario |
2007-10-15 | Intervener's book of authorities, Completed on: 2007-10-15 | Attorney General of Quebec |
2007-10-15 | Intervener's factum - AG on constitutional question, Completed on: 2007-10-15 | Attorney General of Quebec |
2007-10-15 | Notice of withdrawal, of intervention | Attorney General of British Columbia |
2007-10-05 | Intervener's book of authorities, Completed on: 2007-10-05 | Attorney General of Canada |
2007-10-04 | Intervener's factum - AG on constitutional question, Completed on: 2007-10-04 | Attorney General of Canada |
2007-08-27 | Notice of withdrawal, of intervention (service upon appellant missing) | Attorney General of New Brunswick |
2007-08-22 | Correspondence received from, M.-F. Major dated Aug. 22/07 re: in response to the correspondence by H. S. Brown, Q.C. dated Aug. 16/07, the appellant takes no position (by e-mail) | Michael Esty Ferguson |
2007-08-22 | Letter sent to Intervener(s) | |
2007-08-21 | Order on motion for leave to intervene, (BY CHARRON J.) | |
2007-08-21 |
Decision on the motion for leave to intervene, Cha, UPON APPLICATION by the Canadian Civil Liberties Association for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene of the Canadian Civil Liberties Association is granted and the said intervener shall be entitled to serve and file a factum not to exceed 20 pages in length. The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and the intervener. The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) the intervener shall pay to the appellant and respondent any additional disbursements occasioned to the appellant and respondent by its intervention. Granted |
|
2007-08-21 | Submission of motion for leave to intervene, Cha | |
2007-08-20 | Notice of hearing sent to parties | |
2007-08-20 |
Appeal hearing scheduled, 2007-11-13, (previously Nov. 7/07) Judgment reserved |
|
2007-08-16 | Correspondence received from, H. S. Brown, Q.C. dated Aug. 16/07 re: enclosing a copy of the sentence calculation to be added to their record - sent to the judges Sept. 12/07 | Her Majesty the Queen |
2007-08-07 | Respondent's book of authorities, (Vol. 1 to 3) Service missing - rec'd Aug. 8/07 (Orig. Service from AG Quebec rec'd Aug 10/07), Completed on: 2007-08-08 | Her Majesty the Queen |
2007-08-07 | Respondent's record, Service missing -rec'd Aug. 8/07 (Orig. Service from AG Quebec rec'd Aug. 10/07), Completed on: 2007-08-08 | Her Majesty the Queen |
2007-08-07 | Respondent's factum, Service missing - rec'd Aug. 8/07 (Orig. service AG Quebec rec'd Aug. 10/07), Completed on: 2007-08-08 | Her Majesty the Queen |
2007-08-07 | Appeal perfected for hearing | |
2007-07-23 | Response to the motion for leave to intervene, e-mail from Gowlings dated July 23/07 (by CCLA), Completed on: 2007-07-23 | Her Majesty the Queen |
2007-07-11 | Response to the motion for leave to intervene, (Letter Form), from M.-F. Major dated July 11, 2007 re: intervention by CCLA, Completed on: 2007-07-11 | Michael Esty Ferguson |
2007-07-10 | Motion for leave to intervene, (joint with an extension of time) (bookform), Completed on: 2007-07-10 | Canadian Civil Liberties Association |
2007-06-11 | Appellant's record, (Vol. I to V), Completed on: 2007-06-11 | Michael Esty Ferguson |
2007-06-11 | Appellant's book of authorities, (Vol. I and II), Completed on: 2007-06-11 | Michael Esty Ferguson |
2007-06-11 | Appellant's factum, New CD rec'd June 18/07, Completed on: 2007-06-19 | Michael Esty Ferguson |
2007-05-29 | Notice of intervention respecting a constitutional question | Attorney General of British Columbia |
2007-05-29 | Notice of intervention respecting a constitutional question | Attorney General of Ontario |
2007-05-28 | Notice of intervention respecting a constitutional question | Attorney General of Quebec |
2007-05-23 | Notice of intervention respecting a constitutional question | Attorney General of New Brunswick |
2007-05-18 | Notice of intervention respecting a constitutional question | Attorney General of Canada |
2007-05-01 | Notice of constitutional question(s), (served May 1/07) | Michael Esty Ferguson |
2007-04-27 | Order on motion to state a constitutional question | |
2007-04-27 |
Decision on the motion to state a constitutional question, CJ, UPON APPLICATION by the appellant for an order stating constitutional questions in the above appeal; AND HAVING READ the material filed; IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTIONS BE STATED AS FOLLOWS: 1. Does the mandatory minimum sentence prescribed by s. 236(a) of the Criminal Code, R.S.C. 1985, c. C-46, constitute cruel and unusual punishment in the appellant's case, in violation of s. 12 of the Canadian Charter of Rights and Freedoms? 2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 3. If the answer to Question 2 is "no", does Canadian law recognize the availability of a constitutional exemption on a case-by-case basis from the statutory mandatory minimum sentence set out in s. 236(a) of the Criminal Code, R.S.C. 1985, c. C-46? Granted |
|
2007-04-19 | Submission of motion to state a constitutional question, CJ | |
2007-03-09 | Reply to the motion to state a constitutional question, (Letter Form), from N. O'Brien dated March 9, 2007 (fax copy), Completed on: 2007-03-09 | Michael Esty Ferguson |
2007-03-08 | Response to the motion to state a constitutional question, (Letter Form), from H. Brown dated March 8, 2007 (fax copy), Completed on: 2007-03-08 | Her Majesty the Queen |
2007-03-05 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
2007-03-01 | Notice of appeal, Completed on: 2007-03-01 | Michael Esty Ferguson |
2007-03-01 | Motion to state a constitutional question, Completed on: 2007-03-01 | Michael Esty Ferguson |
2007-02-02 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
2007-02-02 | Judgment on leave sent to the parties | |
2007-02-01 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 0501-0001-A, 2006 ABCA 261, dated September 25, 2006, is granted. Granted |
|
2007-01-02 | All materials on application for leave submitted to the Judges, CJ Cha Ro | |
2006-11-27 | Book of authorities | Her Majesty the Queen |
2006-11-27 | Respondent's response on the application for leave to appeal, Service missing - Rec'd on December 8, 2006., Completed on: 2006-12-08 | Her Majesty the Queen |
2006-11-06 | Letter acknowledging receipt of a complete application for leave to appeal | |
2006-11-01 | Correspondence received from, Marie-France Major explaining the publication ban on the juror | Michael Esty Ferguson |
2006-10-26 | Book of authorities, Vol. II, III & IV | Michael Esty Ferguson |
2006-10-26 | Application for leave to appeal, Vol. I, Completed on: 2006-10-26 | Michael Esty Ferguson |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
Name | Role | Status |
---|---|---|
Ferguson, Michael Esty | Appellant | Active |
v.
Name | Role | Status |
---|---|---|
Her Majesty the Queen | Respondent | Active |
Other parties
Name | Role | Status |
---|---|---|
Attorney General of Canada | Intervener | Active |
Attorney General of Quebec | Intervener | Active |
Attorney General of Ontario | Intervener | Active |
Canadian Civil Liberties Association | Intervener | Active |
Counsel
Party: Ferguson, Michael Esty
Counsel
Suite 1310, 530 - 8th Avenue SW
Calgary, Alberta
T2P 3S8
Telephone: (403) 265-5616
FAX: (403) 264-8146
Email: nobrien@obriendevlin.com
Agent
300 - 50 O'Connor Street
Ottawa, Ontario
K1P 6L2
Telephone: (613) 232-7171
FAX: (613) 231-3191
Email: mmajor@langmichener.ca
Party: Her Majesty the Queen
Counsel
Michael Conner
1620, 639 - 5th Avenue SW
Calgary, Alberta
T2P 0M9
Telephone: (403) 297-6005
FAX: (403) 297-3453
Email: rsaull@gov.mb.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Attorney General of Canada
Counsel
Nancy Dennison
Bank of Canada Building
234 Wellington Street, Room 1161
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4763
FAX: (613) 954-1920
Email: robert.frater@justice.gc.ca
Party: Attorney General of Quebec
Counsel
Jean-Vincent Lacroix
1200 Rte de l'Église
2e Étage
Ste-Foy, Quebec
G1V 4M1
Telephone: (418) 643-1477
FAX: (418) 644-7030
Email: glaporte@justice.gouv.qc.ca
Agent
111, rue Champlain
Gatineau, Quebec
J8X 3R1
Telephone: (819) 503-2178
FAX: (819) 771-5397
Email: p.landry@noelassocies.com
Party: Attorney General of Ontario
Counsel
Kimberley Crosbie
720 Bay Street
10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4587
FAX: (416) 326-4656
Email: david.finley@ontario.ca
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Canadian Civil Liberties Association
Counsel
Caroline V. Jones
501 - 250 University Avenue
Toronto, Ontario
M5H 3E5
Telephone: (416) 646-4300
FAX: (416) 646-4301
Email: andrew.lokan@paliareroland.com
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Charter of Rights - Criminal - Cruel and unusual treatment or punishment - Sentencing - Constitutional exemptions - Whether Canadian law recognizes the legal availability of a stand alone “constitutional exemption” from a mandatory minimum sentence as a remedy for an individual who establishes that the sentence is “cruel and unusual punishment” - Whether the Alberta Court of Appeal erred in failing to uphold the trial judge’s decision to grant such a remedy.
A jury found the applicant guilty of manslaughter for the fatal shooting of Darren Varley. Manslaughter requires a mandatory minimum sentence of four years imprisonment. At the time of the shooting, the applicant, an on-duty member of the Royal Canadian Mounted Police, was attempting to place Varley in a police cell. Varley assaulted the applicant and gained control of his police revolver. The applicant regained control of the gun and fired two shots. Despite the fact that the applicant’s fire arms training with the RCMP and other approved agencies had trained him to fire a second shot, the jury concluded that there was no need for a second shot.
Lower court rulings
Court of Queen’s Bench of Alberta
Applicant convicted by jury of manslaughter
Court of Queen’s Bench of Alberta
05547997Q1, 2004 ABQB 928
Declaration constitutional exemptions from mandatory minimum sentences are available and an exemption is appropriate in this case. Applicant sentenced to a conditional sentence of 2 years less a day to be served in the community with credit for time serv
Court of Appeal of Alberta (Calgary)
0501-0001-A, 2006 ABCA 261
Appeal from sentence allowed; Declaration constitutional exemptions from mandatory minimum sentences are not available nor is an exemption appropriate in this case. Accused sentenced to mandatory minimum sentence of four years imprisonment, less credit fo
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available