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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
Noel C. O'Brien, Q.C.
O'Brien Devlin Macleod
Suite 1310, 530 - 8th Avenue SW
Calgary, Alberta
T2P 3S8
Telephone: (403) 265-5616
FAX: (403) 264-8146
Email: nobrien@obriendevlin.com
Agent
Marie-France Major
Lang Michener LLP
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
Rick Saull
Michael Conner
Attorney General of Alberta
1620, 639 - 5th Avenue SW
Calgary, Alberta
T2P 0M9
Telephone: (403) 297-6005
FAX: (403) 297-3453
Email: rsaull@gov.mb.ca
Agent
Henry S. Brown, Q.C.
Gowling WLG (Canada) LLP
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
Robert J. Frater
Nancy Dennison
Attorney General of Canada
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
Gilles Laporte
Jean-Vincent Lacroix
Procureur général du Québec
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
Pierre Landry
Noël et Associés, s.e.n.c.r.l.
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
David Finley
Kimberley Crosbie
Attorney General of Ontario
720 Bay Street
10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4587
FAX: (416) 326-4656
Email: david.finley@ontario.ca
Agent
Robert E. Houston, Q.C.
Burke-Robertson
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
Andrew K. Lokan
Caroline V. Jones
Paliare, Roland, Rosenberg, Rothstein, LLP
501 - 250 University Avenue
Toronto, Ontario
M5H 3E5
Telephone: (416) 646-4300
FAX: (416) 646-4301
Email: andrew.lokan@paliareroland.com
Agent
Brian A. Crane, Q.C.
Gowling WLG (Canada) LLP
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

September 30, 2004
Court of Queen’s Bench of Alberta


Applicant convicted by jury of manslaughter

December 9, 2004
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

September 25, 2006
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

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

Webcasts

Not available.

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
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

Main parties - Appellants
Name Role Status
Ferguson, Michael Esty Appellant Active

v.

Main parties - Respondents
Name Role Status
Her Majesty the Queen Respondent Active

Other parties

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
Noel C. O'Brien, Q.C.
O'Brien Devlin Macleod
Suite 1310, 530 - 8th Avenue SW
Calgary, Alberta
T2P 3S8
Telephone: (403) 265-5616
FAX: (403) 264-8146
Email: nobrien@obriendevlin.com
Agent
Marie-France Major
Lang Michener LLP
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
Rick Saull
Michael Conner
Attorney General of Alberta
1620, 639 - 5th Avenue SW
Calgary, Alberta
T2P 0M9
Telephone: (403) 297-6005
FAX: (403) 297-3453
Email: rsaull@gov.mb.ca
Agent
Henry S. Brown, Q.C.
Gowling WLG (Canada) LLP
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
Robert J. Frater
Nancy Dennison
Attorney General of Canada
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
Gilles Laporte
Jean-Vincent Lacroix
Procureur général du Québec
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
Pierre Landry
Noël et Associés, s.e.n.c.r.l.
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
David Finley
Kimberley Crosbie
Attorney General of Ontario
720 Bay Street
10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4587
FAX: (416) 326-4656
Email: david.finley@ontario.ca
Agent
Robert E. Houston, Q.C.
Burke-Robertson
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
Andrew K. Lokan
Caroline V. Jones
Paliare, Roland, Rosenberg, Rothstein, LLP
501 - 250 University Avenue
Toronto, Ontario
M5H 3E5
Telephone: (416) 646-4300
FAX: (416) 646-4301
Email: andrew.lokan@paliareroland.com
Agent
Brian A. Crane, Q.C.
Gowling WLG (Canada) LLP
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

September 30, 2004
Court of Queen’s Bench of Alberta


Applicant convicted by jury of manslaughter

December 9, 2004
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

September 25, 2006
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

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

Webcasts

Not available.

Date modified: 2025-02-27