Appeal court upholds tough on crime law

A Yukon judge who ruled the federal government's Truth in Sentencing Act violated an aboriginal man's charter rights has had her decision overturned by a higher court.

A Yukon judge who ruled the federal government’s Truth in Sentencing Act violated an aboriginal man’s charter rights has had her decision overturned by a higher court.

The Yukon Court of Appeal says judge Karen Ruddy made a mistake last year when she didn’t apply the government’s tough-on-crime laws to the case of David Chambers, a 31-year-old member of the Champagne and Aishihik First Nations.

The key part of the case was how much credit Chambers should get for the time he spent behind bars before he was sentenced.

One of the major pillars of the Truth in Sentencing Act was to limit the amount of credit a judge can give a person for time spent in custody.

In the Yukon, like many other jurisdictions, it has become common for offenders to receive as much as a day and a half credit for every day spent in pre-trial custody.

The question in this case comes when a person has been re-arrested after already being released before sentencing.

In those cases, the act says a person should not get any extra credit for that time in jail, only a 1:1 ratio.

The Chambers case is essentially about balancing the new laws with the principles set out in cases like R. v. Gladue and R. v. Ipeelee, which require a judge to consider a person’s aboriginal history when coming up with a sentence.

Ruddy ended up giving Chambers more than 1:1 credit for his time. She ruled that portion of the law “has a grossly disproportionate impact on aboriginal offenders and is overbroad in its reach” and therefore violated the charter.

The court of appeal disagreed.

“It is critically important for a sentencing judge to consider an aboriginal offender’s Gladue factors when crafting a fit and proportionate sentence, but this does not imply it is a constitutional imperative that an aboriginal person’s Gladue factors be considered at every point of his or her interaction with the justice system,” said the court of appeal decision released this week.

The court ruled Ruddy’s original decision was based on a faulty starting premise that “Gladue and Ipeelee considerations are effectively a right whenever an aboriginal offender comes before a decision-maker in the justice system and the aboriginal person’s liberty is at stake. That is not the law at this time.”

From Yukon’s legal aid executive director, Nils Clarke, that last sentence is an interesting one.

“I think the key there is that it’s ‘not the law at this time,’” said Nils Clarke, executive director with Yukon’s legal aid.

“It’ll be interesting to see if this case or an analogous case made it to Ottawa what they would do with it.”

Clarke said his office, which represented Chambers in court, is currently reviewing the case to see if it should be appealed to the Supreme Court of Canada.

Ultimately that will be a decision for the board of directors, he said.

The defence has about 30 days to file its intent to appeal. Until then, Chambers – who was sentenced for break and enter, assault and uttering threats – remains free.

If he does go back to jail, he’ll have about 112 days left, Clarke said.

Other courts in Canada have dealt with the issue of credit for time served, but those cases don’t specifically touch on aboriginal offenders. So far nothing has made its way to the top court yet.

Prosecutor Noel Sinclair said this latest decision will not have any retroactive impact on cases other than this particular one. But, he said, is has helped clarify issues moving forward.

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