Since the early days of the Charter, uncertainty prevailed about constitutional exemptions as a remedy for breaches of the section 12 guarantee against “cruel and unusual treatment or punishment”. It was unclear whether an offender could be exempted from the application of a mandatory minimum sentence that would produce an unconstitutional result in the unique circumstances of the case. The Supreme Court of Canada recently decided this issue, ruling in R. v. Ferguson that constitutional exemptions are unavailable under section 12. However, the author argues that uncertainty lingers in the wake of Ferguson because the Supreme Court failed to resolve the underlying issue, which is how to address sentencing provisions that operate constitutionally in most cases but have unconstitutional effects in rare cases. Viewed in its jurisprudential context, Ferguson suggests that section 12 provides little protection to individuals whose exceptional circumstances render the application of a mandatory minimum sentence cruel and unusual.
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