Former Member Cliff Mashford speaks out ...

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CONSTABLE MIKE FERGUSON – UNJUSTLY CONVICTED

Where does one start to talk about the injustice that has been meted out to RCMP Cst. Mike Ferguson and his family? This incident was and is nothing more than a case of simple self defense which somehow turned political and ended up in the criminal courts with the wrongful conviction of an innocent man.

The Incident
Shortly before 4:00 AM on October 3rd 1999 Cst. Ferguson, a 19 year veteran of the RCMP was called to a disturbance at the Pincher Creek Hospital. Upon his arrival he encountered a group of people including 26 year old Darren Varley, a Pincher Creek resident. Mr. Varley was intoxicated, excited, and agitated because he didn’t know the whereabouts of his fiancée. While trying to find out what happened and settle things down, Varley assaulted Cst. Ferguson. Varley was arrested and taken into custody. After being placed in the police vehicle he violently kicked out a rear window of the car. While being transported to the RCMP Detachment he threatened to “kill” Cst. Ferguson several times. While Ferguson was attempting to place Varley in cells he tried to get past Ferguson and in the process assaulted him again. Varley was able to pull Cst. Ferguson’s bullet proof vest over his head so he couldn’t see and then grabbed his loaded RCMP firearm out of his holster.

That is when everything changed and it can only be assumed from what Varley had said in the police car, that he intended to use the weapon to kill Cst. Ferguson. Fortunately Cst. Ferguson was able to gain enough control so as to shoot Varley twice in order to save his own life. This struggle and shooting all occurred in an estimated time frame of 7-11 seconds with only .5-2 seconds between shots. Varley died at the hospital. As tragic as this incident was for Darren Varley and his family, it was equally as tragic for Cst. Ferguson and his family.

As a result of the incident, Cst. Ferguson has literally lost everything, his job, his reputation, his career and his freedom for simply saving his own life when he found it in grave danger. Cst. Ferguson was on duty, in full uniform, and working alone with no backup.

The Investigation and Trials
Cst. Ferguson faced criminal trials on three separate occasions in the subsequent seven years. According to the evidence at his trials, Cst. Ferguson followed RCMP training and policy to the letter. He handled the situation exactly how he had been taught. More than seven years have gone by and the matter has still not been resolved. Cst. Ferguson is currently imprisoned serving what is left of a four year manslaughter sentence imposed upon him by an Appeal Court in Calgary during the month of September 2006. That increase in sentence from two years less a day (which he has already served) to four years is currently being appealed to the Supreme Court of Canada. This appeal is being funded by the RCMP member’s legal fund, not the RCMP or the Federal government.

I believe the treatment of Cst. Mike Ferguson by the RCMP and the Canadian Justice System has impacted his life much more harshly, and he has suffered many more indignities than did Mahar Arar. Mr. Arar was sent back to his home country of Syria by the United States Government after being told by the RCMP that they had reason to believe he was a “terrorist”. Arar spent a year in jail in Syria and claims he was tortured. He has since been cleared of all allegations and is now suing the Federal Government and the RCMP for millions of dollars. The RCMP makes mistakes! The Mike Ferguson case is one of them but without the cachet of a “terrorism story”, the injustice in this instance goes unnoticed, with little or no media coverage. Both were left to the wolves by the RCMP.

It is important to note that I firmly believe this was a case of malicious prosecution. In addition, funding for the legal defense of Cst. Ferguson at the three trials and subsequent appeals was constantly a problem. One lawyer from Vancouver who acted for Cst. Ferguson during trial one was never paid for his services by the RCMP. A portion of his fees were paid by Cst. Ferguson personally. That same lawyer then refused to continue to act for Mike Ferguson because of the lack of funding for the defense during the first trial.

The original investigation should have been conducted by an independent Police Dept. rather than the RCMP. The RCMP should never be allowed to conduct any investigation involving one of their own members when the case involves a death resulting from the actions of that member. They need to remain neutral so as to ensure that no one could ever accuse them of being biased. There are lots of major police departments in Alberta with investigators who could have been called upon to take over this investigation.

Cst. Ferguson should have been told by the RCMP officers the scene, not to do anything or say anything until he had a chance to regain his composure and discuss his actions with competent legal advice of his choosing. That didn’t happen, in fact the opposite occurred. Cst. Ferguson was told by RCMP investigators from the Special Crimes unit that he need not worry as he did nothing wrong and they just had to go through the paper work and everything would be fine. One of the investigators only wanted to take a witness statement from him but another investigator Sgt. John Cantafio, went over that members head and received direction from Supt. Lloyd Hickman the Officer in charge of southern Alberta, to give Cst. Ferguson a “Police Caution”, take a “warned” statement and treat the case as a criminal investigation. Cst. Ferguson co-operated fully with investigators and volunteered a video taped interview. He answered every question put to him and held nothing back. That videotaped interview was used as the basis for the prosecution after it was entered into Court as evidence at all three trials. As well a Use of Force expert was never consulted during this investigation.

The Politics
I believe that when all is said and done Mike Ferguson was used as a political pawn or maybe a better description would be a sacrificial lamb by the RCMP. There is evidence to suggest the RCMP were attempting to pacify residents of Pincher Creek who at the time were very disenchanted with the Force because of three unsolved murders that had occurred in the Pincher Creek area. Shortly after the death of Mr. Varley, the Commanding Officer of “K” Div. (Asst. Commissioner Don McDirmid) and the “K” Div Criminal Operations Officer (Chief Supt. Bowlby) traveled to Pincher Creek and held a closed meeting with a select group of residents who called themselves “Citizens FOR Justice”.

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I am told there were about twenty people in the group but not all of them attended the meeting (the name sounds more like a vigilante group than a Justice group). It was originally supposed to be an open meeting. Neither Cst. Ferguson nor his wife were allowed to attend. I am also told that Sgt. Gary Mills, N.C.O. in-charge of Pincher Creek Detachment at the time, did attend the meeting but was asked to leave half way through. Only the people who attended the whole meeting know exactly what was said and discussed. Why the secrecy? What were the people in attendance promised? Was it that Cst. Ferguson would be charged with murder?

Why was a “Fatality Enquiry” not called? The Alberta Fatality Enquiry Act was passed to take the place of Inquests which for many years were used to establish how, when, where, why, and by what means someone died. This was a perfect case for a fatality enquiry. Very likely an enquiry would have found Cst. Ferguson acted in self defense as his life was in danger and no criminal charges would have been laid. Instead the Alberta Ministry of Justice made a decision to prosecute Cst. Ferguson without the benefit of a Fatality Enquiry. The Commanding Officer of the RCMP in Alberta however did take the time to meet with the group who called themselves “Citizens FOR Justice” from Pincher Creek and he would also have been directly involved in the recommendation to prosecute Cst. Ferguson.

The Prosecution
The Alberta Ministry of Justice decided to go outside the Province of Alberta to select a Prosecutor for this case, why? They will tell you that they did that, in order to eliminate any potential perception of bias. I find that very difficult to believe. They knew full well that the prosecutor they selected for this case, Mr. Matthew Miazga a prosecutor from Saskatoon, was under investigation at the time, in the Province of Saskatchewan, for “malicious prosecution” but he was chosen anyway. The problem Mr. Miazga had in Saskatchewan had to do with a trial he conducted in Saskatoon in 1991. He prosecuted Richard Klassen and 11 others over bizarre and incredible allegations of ritual sexual abuse involving four foster kids. All of the charges were dismissed after the Judge found the allegations were unfounded. The Judge also found that Mr. Miazga knew that the allegations were without merit well before the case went to trial. Miazga was severly criticized by the Trial Judge. The twelve Plaintiffs then sued Miazga and two others for malicious prosecution. Miazga was the lead prosecutor in the first two Ferguson criminal trials, both of which ended with “hung juries”.

One would think the message was pretty clear by then that there was not enough evidence to reasonably expect a conviction of Cst. Ferguson. Two trials were not enough however as Miazga recommended a third trial and the Ministry of Justice in Edmonton went along with it. By this time Miazga had been found civilly liable for malicious prosecution in the Saskatoon case so he was not allowed to prosecute the third Ferguson trial. What does that say about the credibility of the Prosecution?

The third jury trial was handled by Rick Saull a prosecutor from Winnipeg, who had acted as Miazga’s understudy in trial two. I find it incredible that the Ministry of Justice would go outside the Province to find prosecutors but did not go outside the province to find a Judge or outside the RCMP to have an independent Police department investigate this matter. Trial three rightly so should have also ended with a “hung jury” as one of the jurors (a female) wrote to the presiding Judge the day after the verdict and said in essence that she had been threatened and intimidated by the other jurors into agreeing with a conviction of Manslaughter. Her letter was referred to the Minister of Justice but nothing came of it. Defense Counsel (Earl Wilson) wanted a hearing so he, the prosecutor and Mr. Justice Hawco could question the juror but the Minister of Justice ruled against that. That juror has never been identified or questioned about any of her allegations. Considering everything that happened, how could Mike Ferguson ever have received a fair trial?

One had to wonder who initiated and demanded this prosecution. Why did the entire incident turn so political? Having a third trial on the same charge is extremely unusual in Canada and it clearly suggests “persecution” rather than “prosecution”. Was it senior management in the RCMP who kept pushing for a conviction so they could pacify the residents of Pincher Creek or was it someone in the Ministry of Justice fulfilling a promise to the victim’s family? Senior management of the RCMP certainly must have played a big role in the investigation and they likely made or at least concurred with recommendations to lay criminal charges against Cst. Ferguson. The RCMP totally abandoned Mike Ferguson. He was literally left to hang out to dry and fend for himself. Regular members of the Force were, I am told, warned by senior management not to attend Court or show any visible support for Cst. Ferguson. Why? Most must have listened as the only people who showed up to support Mike at his three trials and subsequent appeals, were retired RCMP and City Police members, family, friends and a sprinkling of courageous active RCMP members. Interestingly, the former Officer in charge of southern Alberta and the former Commanding Officer of “K” Div (Alberta) who are now retired from the RCMP have been doing contract work for the Ministry of Justice.

The Verdict
The only person who “got it right” and understood the injustice, was Queens Bench Justice Mr. Ged Hawco who presided over the third trial. Unfortunately, the third jury found Mike Ferguson guilty of Manslaughter and Judge Hawco could not do anything about it. In his reasons for Judgment prior to sentence he did find the following:

- Darren Varley tried to get by Cst. Ferguson in the cell and assaulted Cst. Ferguson in the process
- Darren Varley was able to get control of Cst. Ferguson’s gun which was in Cst. Ferguson’s service holster and had pulled the gun out the holster.
- Cst. Ferguson was able to regain control of the gun and fired two shots at Darren Varley

- Since the Jury found that Cst. Ferguson was not acting in self de-fence when he fired the second shot and that he did not have the intent to cause death or grievous bodily harm to Varley, the Jury must have determined that there was some justification for firing the first shot. As I stated at the time, I was and am satisfied that the justification was that Cst. Ferguson honestly believed, at the time 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 de-fence.
- That second shot was something which had been instilled in Cst. Ferguson through all of his firearms training both with the RCMP and other approved agencies. (that policy was confirmed by a RCMP firearms instructor from Regina during the trials) 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 Varley his life.

It has been said many times that Canada has a Legal System but not a Justice system. This case is a perfect example of this. Up until the time Darren Varley pulled Cst. Ferguson’s gun out of his holster and took possession of it, Cst. Ferguson’s life was not in danger. When Varley pulled Cst. Ferguson’s vest over his head and then pulled his gun out of his holster and took passion of it, everything changed. That’s when Cst. Ferguson’s RCMP training took over and he did what he had been taught to do, to save his own life.

One has to wonder what would have happened had Darren Varley actually shot and killed Cst. Ferguson with his own gun. Would the RCMP have then treated Cst. Ferguson as a “fallen hero” and held an elaborate televised funeral for him as they did for the four RCMP members who were shot and killed in Mayerthorpe, Alberta in 2005 or the two RCMP members who were shot and killed in Saskatchewan in 2006?

One also has to wonder if because of what happened to Cst, Ferguson, are RCMP members and all police officers in Canada for that matter, now hesitating when confronted with life and death situations, and it is costing lives, potentially their lives? The legal decisions in this case will seriously affect each and every police officer in Canada who is authorized to carry a firearm. Is that what we want to see happen? The Federal Government is about to provide firearms to our Canada Customs agents at border crossings. Should we tolerate an environment where these officers “hesitate” in life or death situations?

I am a retired RCMP Staff Sergeant who spent many years working in uniform, alone, in small towns in Alberta. Over the years I faced many similar situations. I often think “oh but for the grace of God go I”. Dealing with intoxicated people in your custody is often unpredictable and dangerous. I was always taught and did think that if you did your job honestly, to the best of your ability and by following RCMP policy to the letter, the Justice system would protect you. It certainly didn’t protect Cst. Ferguson. I have always been proud of the fact that I was a RCMP member and that I served my country but when I see what the RCMP and the Justice system have done to Cst. Ferguson and his family it makes me sad and ashamed. He and his family do not deserve the treatment they have received.



C.A. (Cliff) Mashford
Cochrane, Alberta