I was digging for more information on another case when I stumbled across this one. I found myself unable to stop reading about RCMP Constable Mike Ferguson and the in-custody shooting death of Darren Varley on October 3, 1999.

The killing of Darren Varley, while not strictly meeting the definition of police brutality, is nevertheless a cautionary tale to all police officers and citizens alike.

Why?

Your life can change literally in the blink of an eye. One split-second decision can cost you everything.

Why does this concern gun owners as well as police? Quite simply because we gun owners must realize, just as police officers must realize, that you are responsible for every bullet that leaves the barrel of your gun.

No exceptions.

On October 3, 1999 Darren Varley was at the At the Pincher Creek Hospital. He was driven there by his sister so he could check on his friend, Rod Tuckey, who was injured earlier in the night in a bar fight. Both Tuckey and Varley were involved in the fight and both were drinking.

Constable Ferguson arrived to investigate the possible assault on Rod Tuckey and things went sideways almost immediately.

Darren Varley, to quote the judge’s sentencing decision, became “very agitated, aggressive and loud” and got into a physical altercation with Constable Ferguson.

He was distraught about his missing fiance, Chandelle Bachand. He was intoxicated as well, which didn’t help matters.

When Ferguson arrived, he spoke with Varley, Varley’s sister and a number of others. Varley was also concerned about his fiancé, Chandelle Bachand, who had left the bar earlier. He believed that she had gotten into a van with strangers and he was concerned about her. He attempted to provide Ferguson with details of the circumstances of Bachand’s going missing and a description of the van. Varley was excited, upset and agitated in his manner toward Ferguson who became angry and, after an exchange of words, witnesses at the scene saw Ferguson punch Varley in the jaw causing his mouth to bleed. Varley was not placed under formal arrest at this time. But Ferguson said that Varley would be arrested for public intoxication and, after handcuffing him, placed him in the police vehicle.

Varley was transported to the Pincher Creek RCMP Detachment by Constable Ferguson. On the way Darren Varley kicked out the window of Constable Ferguson’s police cruiser. At the detachment he continued to be violent and was adamant he did not want to placed into a cell with his fiance still missing. The two got into another physical altercation and this time Darren Varley did something incredibly stupid. He grabbed Constable Ferguson’s service pistol from his holster.

The altercation continued as both men fought for control of the loaded handgun and Constable Ferguson eventually regaining control of his service pistol. Fearing for his life Constable Ferguson fired twice. It is the second shot that cost him his career and his liberty.

Everything that could go wrong did go wrong that fateful night for both men.

One, a drunken and distraught 23-year-old, made a series of very poor decisions, ending with the decision to grab a police officer’s gun. The other, RCMP Constable Mike Ferguson, fired once to defend himself. Then he fired again.

Expert medical evidence confirmed that Varley died from a gunshot wound to the head. Forensic evidence from the Medical Examiner’s office indicated that the two shots were probably fired from a range of greater than nine inches. While the stomach wound was not fatal, the head injury was. Both medical and blood spatter evidence were consistent with Varley being bent over clutching his abdomen when the shot to the head was fired.

In the heat of fighting for his life against a man attempting to grab his service pistol it is not beyond the realm of possibility that Constable Ferguson fired twice and believed he was fully justified in doing so.

Unfortunately when you fire a gun every moment of that time-line will be explored, dissected and scrutinized by others; and you have no control over how they will view your actions.

6. Since the jury found that Mr. Ferguson was not acting in self-defence when he fired the second shot, but also found he did not have the intent to cause death or grievous bodily harm to Mr. Varley, the jury must have determined that there was some justification for firing the first shot. As I stated at that time, I was and am satisfied that the justification was that Mr. Ferguson honestly believed, at the time that he fired the first shot, that he himself was in danger of death or grievous bodily harm. He was at the time of the first shot, acting in self-defence.

7. In order for the jury to have convicted Mr. Ferguson of manslaughter, they must have concluded that after the first shot had been fired, which struck Mr. Varley in the abdomen, Mr. Ferguson did not have the same fear of death.

8. As there was not the same fear of death, there was then no need to fire the second shot.

9. Having found that there was no intent to cause death or grievous bodily harm, the jury must have concluded that the second shot was not a deliberate shot to the head, but was simply a shot fired unnecessarily, in close quarters, and which could or would be in the normal course of events, dangerous. That second shot was something which had been instilled in Mr. Ferguson through all of his fire arms training, both with the RCMP and other approved agencies. In this instance, his training led him to fire a second shot which the jury found to be unnecessary. It caused him the conviction of manslaughter. Tragically, it also cost Mr. Varley his life.

In a very real sense Constable Mike Ferguson was convicted because of his training. Police officers are trained to fire until the threat is stopped. A single shot is often not enough to stop someone agitated and distraught as Darren Varley was that night.

At sentencing Justice G.C. Hawco felt the mandatory minimum sentence mandated by the Criminal Code was too harsh and granted Mike Ferguson a constitutional exemption from it.

[49] Having considered what Justice Lamer says I must consider, the question I must now answer is would a sentence of four years or more in prison be found, by an unbiased and informed public, to be grossly disproportionate for Mr. Ferguson. In my respectful view, the answer must be yes.

[50] In what I stress again are the very unique circumstances of this case, including the effect a sentence of four years in prison would have on Mr. Ferguson, when I consider what I believe would, but for the statutory minimum, be an appropriate sentence, I am satisfied that an informed public would consider that four years imprisonment for this particular offender would intolerable.

[51] I therefore find that this is one of those rare instances contemplated by Justices Arbour and McLachlin in Morrisey where I am persuaded that the minimum sentence prescribed by Section 236(a) of the Criminal Code is grossly disproportionate to the particular circumstances of this case. Mr. Ferguson is therefore entitled to a constitutional exemption from the application of Section 236(a) of the Criminal Code.

[52] In place of the four year sentence required by Section 236(a) of the Criminal Code, I sentence Mr. Ferguson to two years imprisonment less one day. From that will be deducted 210 days. This amount of time is to be credited to Mr. Ferguson because of the 70 days which he has already spent in jail. That is a credit of three for one, which is somewhat higher than normal for pre-sentence custody. That is so because of the particularly strenuous and difficult nature of the custody which has incurred in this case.

Michael Ferguson appealed his conviction for manslaughter to the Alberta Court of Appeal. He lost. Defense lawyer Noel O’Brien was unimpressed with the Alberta Court of Appeal ruling.

“What happened here is the court has now put an end to the constitutional exemption provisions which allow a person to establish that in his unique case a mandatory punishment is a cruel and unusual punishment. This case takes on a broad spectrum of particularity as it relates to police officers or customs officials or anyone who is required to carry a gun in the performance of their duties.”

Michael Ferguson then appealed to the Supreme Court of Canada. They agreed to hear the appeal and on February 29, 2008 released their decision. They too dismissed his appeal.

[1] This appeal raises two questions. First, does imposition of the four-year mandatory minimum sentence for manslaughter with a firearm constitute cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms in the circumstances of this case? Second, can an offender who demonstrates that a mandatory minimum sentence would constitute cruel and unusual punishment in his case obtain a stand-alone constitutional exemption from the application of that minimum sentence?

[2] I conclude that the answer to both questions is no.

No good came out of the events of October 3, 1999. One man lost his life and another lost his career and his liberty.

That Darren Varley bears the bulk of the responsibility for his own death through his own actions, anyone using a firearm is responsible for each bullet that leaves the barrel of that gun.

Constable Mike Ferguson, from everything I have read, did everything right up until that split second when he pulled the trigger a second time. That split second will haunt him for the rest of his days, I’m sure, just as it will haunt the entire family of Darren Varley for the rest of theirs.

 

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Decisions in this case:

• R. v. Ferguson, 2004 ABQB 928 (CanLII)
• R. v. Ferguson, 2006 ABCA 36 (CanLII)
• R. v. Ferguson, 2006 ABCA 261 (CanLII)
• R. v. Ferguson, [2008] 1 SCR 96, 2008 SCC 6 (CanLII)