Judge challenges Truth in Sentencing Act

A Yukon judge has ruled that part of the federal government’s Truth in Sentencing Act violates a man’s rights under the Canadian Charter of Rights and Freedoms.

A Yukon judge has ruled that part of the federal government’s Truth in Sentencing Act violates a man’s rights under the Canadian Charter of Rights and Freedoms.

In a 62-page decision made public last week, judge Karen Ruddy was deciding how much credit Yukoner David Chambers should receive for the time he spent behind bars prior to being sentenced for break and enter, assault and uttering threats.

The Truth in Sentencing Act was passed in late 2009 and came into force on February 22, 2010. Its major impact 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 rearrested 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 Crown argued that the new rules should be applied to Chambers, leaving the 31-year-old member of the Champagne and Aishihik First Nations with about four months left to serve in his sentence.

But Ruddy sided with the defence, ruling that portion of the law “has a grossly disproportionate impact on aboriginal offenders and is overbroad in its reach” and therefore violated the charter.

In making her decision to give Chambers the most credit possible for his time in custody, Ruddy pointed to other court decisions that take into account a person’s aboriginal history.

“In my view, penal legislation that disallows any consideration of an individual’s aboriginal status is constitutionally flawed, offends the principles of fundamental justice, and can only be considered to have a grossly disproportionate impact on aboriginal offenders,” she said.

Ruddy pointed to two major cases in recent years, R. v. Gladue and R. v. Ipeelee, as well as other cases related to aboriginal people in the justice system.

“The Supreme Court of Canada has, in powerful language, spoken at length about the experience of aboriginal persons in Canada; how that history has negatively impacted on them resulting in a gross overrepresentation of aboriginal offenders in the criminal justice system and in Canadian jails; and of the obligation of all judges to consider the systemic or background factors which may have brought an aboriginal offender before the courts,” she said.

“I conclude that a reasonable person, knowledgeable about both the philosophy and principles of sentencing and the history of systemic discrimination which has led to the overrepresentation of aboriginal offenders in the Canadian criminal justice system and in Canadian jails, would consider that the impugned portion of the provision operates in a fundamentally unfair manner with respect to aboriginal individuals, such as Mr. Chambers,” she said.

“It will undeniably lead to lengthier sentences for aboriginal offenders, and this is not only contrary to the express direction of the Supreme Court of Canada in Gladue and Ipeelee, but also contrary to the principles of fundamental justice.”

Chambers was released with credit for time served. He will be on probation for 12 months.

Contact Ashley Joannou at ashleyj@yukon-news.com

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