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The Supreme Court of Canada has upheld a mandatory four-year sentence for an Alberta police officer found guilty in the fatal shooting of a suspect.

The important test case of mandatory minimum sentences involved an Alberta RCMP officer, Constable Michael Esty Ferguson, who inadvertently killed a drunken, unruly prisoner during a station house scuffle on Oct. 3, 1999.

Constable Ferguson maintained that he shot the 26-year-old victim, Darren Varley, twice in self-defence. While the jury rejected the self-defence argument at his 2004 trial, it also declined to find him guilty of murder. Instead, it found him guilty of manslaughter with a firearm.

In a unanimous ruling today, the Court said that the mandatory sentence was not so “grossly disproportionate” as to justify departing from a law specifically drafted by Parliament to prevent judges using their own view of a case to impose a lower sentence.

The Court said that judges cannot create what is known as a “constitutional exemption” to short circuit mandatory sentences which they happen to feel are unconstitutionally cruel.

Going further, the Court sounded the death knell for the very notion of constitutional exemptions - seen by their proponents as a vital escape valve for judges in an era when politicians flock to mandatory minimums because they play well with a vocal segment of the public that believes judges are soft on crime.

The Supreme Court turned its back on those arguments today.

“While the availability of constitutional exemptions for mandatory minimum sentencing laws has not been conclusively decided, the weight of authority thus far is against them and sounds a cautionary note,” Chief Justice Beverley McLachlin said for the Court.

She said that since Parliament passes mandatory minimum sentence laws specifically to remove judicial discretion to undercut the minimum sentence it has stipulated, “to allow courts to grant constitutional exemptions for mandatory minimum sentences would directly contradict Parliament's intent and represent an inappropriate intrusion into the legislative sphere.”

The use of a constitutional exemption “buys flexibility at the cost of undermining the rule of law and the values that underpin it: certainty, accessibility, intelligibility, clarity and predictability,” she added.

Chief Justice McLachlin said that if the Courts find that a law is unconstitutional, then it should be struck down in its entirety to that Parliament can redraft it.

“Allowing unconstitutional laws to remain on the books deprives Parliament of certainty as to the constitutionality of the law in question and thus of the opportunity to remedy it,” she said. “In granting constitutional exemptions, courts would be altering the state of the law on constitutional grounds without giving clear guidance to Parliament as to what the Constitution requires in the circumstances.”

In the Ferguson case, the sentencing judge used a constitutional exemption to impose a two-year conditional sentence.

A federal government lawyer who argued the case, Robert Frater said today that, while the ruling appears limited to effect of the Charter guarantee against cruel and unusual punishment on mandatory minimum sentences, "there is pretty strong language in the judgment about the inconsistency between constitutional exemptions and principles underlying the rule of law."

In a 2-1 split, the Alberta Court of Appeal reversed the ruling and substituted the mandatory minimum of four years.

The Supreme Court agreed yesterday, saying that it was not open to the trial judge “to attempt to reconstruct the logical process of the jury and, more critically, to develop a theory to support the jury's verdict which was not only speculative, but contrary to the evidence

“When the erroneous findings of the trial judge are set aside, no basis remains for concluding that the four-year mandatory minimum sentence prescribed by Parliament constitutes cruel and unusual punishment on the facts of this case.”

The case raised fundamental issues about judicial activism, the role of Parliament and whether judges should have the sentencing discretion to avoid injustice in specific cases.

Had the Court ruled in the other direction, it would likely have infuriated federal and provincial governments that have grown increasingly militant about gun violence.

Approximately 30 mandatory minimums – most of them for gun crimes – hung in the balance, and more are contained in an omnibus crime bill currently before Parliament.

The ruling means that judges will continue to face an all-or-nothing proposition when a law is disproportionately cruel to a single offender whose culpability was minimal. They must either consign the offender to serve an onerous sentence or strike down the law.

In defending the law, Alberta government lawyers argued that it would be virtually impossible for any killing with a firearm to warrant less than a four-year term.

“A four-year sentence is wholly proportionate to the crime and the offender,” they said.

Ontario government lawyers, too, supported the retention of the law. “Striking down legislation is a blunt tool, but that is precisely why it is a better tool than a constitutional exemption,” David Finlay and Kim Crosbie argued in a brief that foreshadowed today's ruling.

A legal intervenor, the Canadian Civil Liberties Association, argued that a mandatory minimum sentence can even rebound if it seems too harsh to fit a particular case.

“There is some evidence that they have the paradoxical effect of making juries more reluctant to convict,” said CCLA lawyers Andrew Lokan and Caroline Jones.