The Yukon Court of Appeal has cut a convicted drunk driver’s jail time almost in half after finding the judge who handed down the sentence did not adequately take the man’s Indigenous heritage into account.
In a written ruling filed Aug. 4, Chief Justice Robert J. Bauman agreed with an appeal filed by Champagne and Aishihik First Nations citizen Arthur Joe, in which Joe argued that 2014 sentence of 43 months and five days plus three years’ probation for convictions of refusing to provide a breath sample, impaired driving and breach of undertaking were unjust.
The original sentencing judge, Donald Luther, “erred” in not properly taking into account Joe’s “Aboriginal background, his moral blameworthiness and… the principle of rehabilitation” when handing down the sentence, Bauman found. Bauman revised Joe’s sentence to 23 months and five days’ imprisonment plus three years’ probation instead, which credits Joe for the 19 and a half months of pre-sentence custody he served. This resulted in a net sentence of three and a half months plus five days, which Bauman notes Joe has already served.
Bauman also struck down one of the original terms of Joe’s probation, which would have prohibited him from “being present in any motor vehicle when an occupant of that vehicle has any alcohol in his body.”
The decision was supported by Justice Ian Donald and Justice Bonnie Tulloch.
Joe’s convictions stem from two incidents in 2014. In the first, police were called by a concerned citizen who saw Joe driving erratically. Police asked Joe to give a breath sample and he blew three times, but not hard enough for the sensor to obtain a sample. He refused to blow a fourth time and was arrested. At the time, he was under an order to abstain from possessing or consuming alcohol and pled guilty to charges of refusing to provide a breath sample and breach of undertaking.
In the second incident, police found Joe next to his stalled truck and took him to an RCMP detachment, where he blew well over the legal blood alcohol concentration limit but claimed someone else had been driving. He was found guilty of impaired driving at trial.
At sentencing, Luther had “ruled out prioritizing rehabilitation” on account of Joe’s “horrendous record,” which included numerous drunk driving convictions. Luther had also stated that the fact that Joe was “horribly abused as a child in residential schools does not relieve him from responsibility for these offences.”
In his appeal ruling, Bauman wrote that “the sentencing judge was required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society,” but effectively ignored Joe’s Gladue report, which, among other things, detailed Joe’s experiences in residential school and the resulting trauma.
Luther also erred in not considering Joe’s rehabilitation potential, Bauman ruled, noting that, until the 2014 convictions, Joe had been out of trouble with the law for eight years, and even built a camp near Haines Junction he plans to turn into a “tourism centre or a healing centre for people struggling with addictions and residential school trauma.”
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