Noel O’Brien,  Photo by Greg Fulmes Click here to see full sized version.

In a landmark judgment on Charter remedies, the Supreme Court of Canada has ruled that judges cannot grant case-by-case “constitutional exemptions” from mandatory minimum sentences which too harshly punish one or more individuals.

Even if the law has unconstitutionally punitive effects in only one or a few isolated cases, courts must strike the law down via a declaration of invalidity under s. 52(1) of the Constitution Act, 1982, the 9-0 judgment holds.

“Bad law, fixed up on a case-by-case basis by the courts, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada,” Chief Justice Beverley McLachlin’s explained in her Feb. 29 decision.

“If a mandatory minimum sentence would create an unconstitutional result in a particular case, the minimum sentence must be struck down,” the chief justice ruled.

Her judgment contains language deferential to Parliament, but also holds legislators to an exacting constitutional standard. It serves notice that mandatory minimum sentences which result in “grossly disproportionate” punishments for even one person are liable to be struck down as violations of the s. 12 Charter guarantee against cruel and unusual punishment.

The chief justice stated that to permit the Charter’s individual remedy provision – s. 24(1) – to be used to carve out stand-alone exceptions, or “constitutional exemptions,” from the universal application of mandatory minimum sentences would undermine the Charter’s remedial scheme and the rule of law, as well as intrude into Parliament’s role.

She reasoned that granting a constitutional exemption from a mandatory minimum sentence law which results in a grossly disproportionate, and hence unconstitutional, punishment would directly contradict Parliament’s clear intention to eliminate all judicial discretion from the sentencing of certain categories of offenders.

“For the court to introduce such discretion would thus represent an inappropriate intrusion into the legislative sphere,” she wrote.
The chief justice’s unequivocal ruling that constitutional exemptions are not available for mandatory minimum sentences ends a longstanding academic debate, as well as division among trial and appellate courts across the country.

Moreover, although the carefully worded decision focuses on cruel and unusual punishment and mandatory minimums, Chief Justice McLachlin’s broad policy reasons for rejecting constitutional exemptions in the sentencing context suggest that obtaining constitutional exemptions from other laws for other Charter violations could be an uphill battle, lawyers say.

Noel O’Brien of Calgary’s O’Brien Devlin MacLeod, who represented the unsuccessful appellant Michael Ferguson, said he sees the ruling as a major blow to the Charter’s prohibition of cruel and unusual punishment. “Mandatory minimums are really the focus of s. 12 nowadays, and in my view now this case, in essence, puts to rest really any value that
s. 12 has because I think it’s going to be very difficult to find any judge to say there is a violation when he knows that he has to strike down the law,” O’Brien told The Lawyers Weekly. “My biggest concern now is that s.12, and the violations there under, may go unaddressed . . . and I think that’s going to be the definite result as a result of this particular decision.”

Counsel for the intervener Attorney General of Canada, Rob Frater of the Department of Justice in Ottawa, told The Lawyers Weekly Chief Justice McLachlin’s judgment provides trial judges with a useful, step-by-step guide for going about finding the facts necessary for the purposes of sentencing after a jury has convicted.

Frater said the high court accepted arguments by the Alberta and federal Crowns against constitutional exemptions from the mandatory minimum sentence for manslaughter committed with a firearm.

“Our position was that [an exemption] would effectively be the end of the minimum because courts, over time, would find an increasing number of exemptions. So the idea that it was a sentence that applied to all would be cut away over time.”

The intervener Canadian Civil Liberties Association (CCLA), which opposes mandatory minimum sentences, agrees with the court that striking these sentences down is the best Charter remedy, said its counsel Andrew Lokan of Toronto’s Paliare Roland.

But “it does raise the issue of possible concern that if there are isolated cases [of unconstitutional sentences], as a practical matter the courts will be unwilling to strike down the provision, yet allow people to suffer under unjust sentences because they can’t give an individual remedy,” Lokan said.
Ferguson, an ex-RCMP officer convicted by an Alberta jury of manslaughter with a firearm, argued that the mandatory minimum sentence of four years in s. 236(a) of the Criminal Code violates his right not to be punished much more harshly than he deserves.

The trial judge found the four-year sentence to be a violation of s. 12 because it was grossly disproportionate to Ferguson’s moral culpability for twice shooting an upset and intoxicated man in a jail cell who had grabbed Ferguson’s gun. In sentencing Ferguson, the trial judge concluded that that constable, who shot the man first in the stomach and then two or three seconds later in the head, did so in response to his police training, not in anger or as a matter of judgment. Ferguson was given a conditional sentence of two years less a day. The Alberta Court of Appeal overturned the constitutional exemption, sentencing him to four years.

On appeal Ferguson did not challenge the constitutionality of the mandatory minimum per se, but argued the law’s application to him was extremely and shockingly harsh and thus unconstitutional.

The Supreme Court disagreed. Chief Justice McLachlin said the trial judge’s reasoning and conclusion on Ferguson’s blameworthiness was faulty. Nor did the factors in Ferguson’s favour reduce his moral culpability enough to make the four year’ sentence “grossly disproportionate” and thus contrary to s. 12, she held.

Moreover, even if the mandatory minimum sentence had violated Ferguson’s s. 12 right, there could be no constitutional exemption, ruled the court.
Chief Justice McLachlin said the weight of jurisprudential authority is against such exemptions. And if the unconstitutional effects of laws can be remedied on a case-by-case basis under s. 24(1), there might be little left to do for s. 52(1). Therefore “laws that should be struck down – over-inclusive laws that pose a real risk of unconstitutional treatment of Canadians – would remain on the books contrary to the intention of the framers of the Charter,” she wrote.

The chief justice also reasoned that constitutional exemptions for mandatory minimum laws would buy flexibility at the cost of undermining the rule of law, and its underlying values: certainty, accessibility, intelligibility, clarity and predictability. Permitting unconstitutional laws to remain on the books would deprive Parliament of certainty about the constitutionality of the law and of the opportunity to remedy the flaws. Courts would also be changing the state of the law on constitutional grounds without clearly telling legislators what the Constitution requires, she said.

Reasons: R. v. Ferguson, [2008] S.C.J. No. 6.