Judge Donald Luther missed the mark when he disregarded an Indigenous offender’s traumatic upbringing, the Yukon Court of Appeal heard May 17.
Arthur Joe is appealing his April 2016 sentence of three and half years in jail for drunk driving.
Back in January 2014, Joe was seen driving erratically in Whitehorse and a citizen phoned the police. Joe was charged after he refused to provide a breath sample. In October of that same year Joe was found intoxicated next to his truck and claimed he wasn’t driving but instead changing the fuel lines of his truck.
He blew almost twice the legal limit and was charged with impaired driving.
Luther focused on Joe’s criminal record and dismissed a Gladue report detailing the offender’s nightmarish upbringing, his lawyer Vincent Larochelle told the Court of Appeal.
The Supreme Court of Canada ruled in 1999 that courts have to take into consideration the unique life circumstances Indigenous offenders have had because of colonialism and residential schools. Courts have been relying on Gladue reports, named after the landmark decision, that detail those circumstances.
“Mr. Joe’s experience of her majesty’s colonial policy was not pleasant,” Larochelle said.
At age five, Joe started drinking after coming back from the Lower Post residential school, one of the most repressive and brutal residential schools in Canada. He’s been dealing with substance abuse all his life, Larochelle told the court.
Joe’s lawyer during the sentencing hearing in 2016 asked for 12 to 18 months in jail while the Crown prosecutor sought four to five years.
Luther ruled that the priority was to keep the public safe and that rehabilitation would have to take a backseat. He sentenced Joe to 43 months in jail.
“In this rare case of a notoriously repeat drinking driver, it is my view that he should have almost no particular consideration afforded to him as an aboriginal offender, regardless of how lifelong miseries were forced on him by residential schools and integration,” Luther wrote.
Luther completely failed to understand and apply the landmark decision, Larochelle said.
“Gladue is always relevant,” he told the Court of Appeal, noting the Supreme Court of Canada had previously criticized lower court judges for their “judicial resistance” to applying Gladue in serious crimes.
Luther also found there was “no evidence” that Indigenous offenders are overrepresented in jail for drinking.
“Aboriginal offenders are overpresented in the judicial system period,” Larochelle said, who seemed baffled he even had to introduce evidence on the topic.
While First Nation people represent about a quarter of the Yukon’s population, over 70 per cent of inmates at the Whitehorse Correctional Centre are of First Nation descent.
“We are in a crisis (that is) becoming worse because the judicial system’s response to First Nation offenders is to incarcerate at all costs,” Larochelle said.
The only place where Indigenous offenders are not overrepresented is in early releases, he added.
“(Luther’s) statement is at best insensitive.”
Larochelle said the goal with Gladue is to find alternatives, when possible, to incarcerating First Nation offenders.
“It’s not a get-out-of-jail card, or a 15 per cent discount,” he said.
Larochelle also took issue with Luther’s interpretation of Joe’s criminal record.
“He treated Mr. Joe like a criminal record,” he said. “Mr. Joe has a past, a present and a future.”
In his judgment Luther called Joe’s record “horrendous,” noting 12 previous convictions for drinking and driving and 14 convictions for failing to comply with court orders.
But he failed to appreciate a nine-year gap from 2005 to 2014 in Joe’s record, Larochelle said.
During that time Joe was committed to sobriety and living in the community. But after materials were stolen from his healing camp, he relapsed.
Joe poured his residential school settlement money into that healing camp, Larochelle noted, and received the backing of the Champagne Aishihik First Nation.
“He is a generous person who wants to help out people at his camp,” Larochelle said.
Crown prosecutor Leo Lane admitted Luther’s decision had some “regrettable language” but disagreed Luther disregarded Gladue.
The priority was to deter that sort of crime, Lane said. Given Joe’s prior history, the sentence wasn’t unfit. With credit for time served before the sentencing, Lane noted Joe only had 23 months left to serve, which allowed him to stay at the Whitehorse Correctional Centre instead of being sent to B.C.
Chief Justice James Bauman, Justice Ian Donald and Justice Bonnie Tulloch heard the case. They reserved their decision.
Contact Pierre Chauvin at email@example.com