The Yukon Court of Appeal has upheld a key plank of Ottawa’s tough-on-crime agenda, with potentially nationwide implications.

In a ruling that brings aboriginal status into stark relief and directly affects Yukon offenders, Chief Justice Robert Bauman has overturned a lower court judge’s finding that a federal sentencing provision was unconstitutional.

The law in question is a relatively recent amendment to the Criminal Code that precludes inmates who languish in pre-sentence custody from “enhanced credit” in certain circumstances.

A decision last year by sentencing judge Karen Ruddy upended federal legislation enacted in 2010 that states individuals who have been arrested on charges, subsequently released on bail and then detained and charged again — often for breaching the conditions of their bail rather than committing a serious crime — forfeit the luxury of 1.5-to-one credit.

In Canada, enhanced credit works by knocking off 1.5 days from an offender’s sentence for every day he or she spent behind bars before the sentence was handed down.

Ruddy found the provision violated two sections of the Canadian Charter of Rights and Freedoms: Section 15, which protects against discrimination based on race, ethnic origin and other factors; and Section 7, which enshrines the legal right to life, liberty and security of the person.

“While it is likely true, as the sentencing judge here concluded, that aboriginal persons will proportionately be affected more by the impugned provision because of their over-representation in the target population, it is not because they are targeted as a result of a distinction based an enumerated or analogous ground (under Section 15),” Bauman stated in his decision.

“Virtually every provision of the Code is more likely to affect a disproportionate number of aboriginal persons than other segments of the population, but the Code creates distinctions on the basis of who breaks the law — or in this case, bail conditions — not on the basis of race,” Bauman wrote.

People of aboriginal descent are much more likely to be snared by the legislation because the enduring social issues — particularly substance abuse — associated with the legacy of colonialism and discrimination undermine aboriginal offenders’ ability to comply with bail conditions. These breaches, both judges noted, compel still further, albeit lesser, criminal charges.

Bauman also found that the impugned statute does not run afoul of “our basic values,” which include “those against arbitrariness, overbreadth and gross disproportionality.”

He said there was a “rational connection” between the objectives of the provision and the “limits it imposes on the liberty of persons subject to it.”

He went on to quote former Justice minister Rob Nicholson.

“The practice of awarding generous credit erodes public confidence in the integrity of the justice system,” the Conservative MP said in a parliamentary debate in 2009.

“It also undermines the commitment of the government to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods.”

Nicholson added that a lenient credit allowance “fails to punish them adequately for the deeds that led to their convictions in the first place.”

Quoting Ruddy, Bauman stated: “I simply cannot conclude that its impact on aboriginal offenders creates ‘a draconian impact outside the norms accepted in our free and democratic society.’”

Throughout the ruling, Bauman emphasized Ruddy’s “faulty starting premise.

“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,” he wrote.

Gladue factors comprise the enduring legacy of colonialism, residential schools and dislocation, which has resulted in endemic social problems like substance abuse and a lack of community supports and employment opportunities.

These factors, which can serve to mitigate an aboriginal offender’s sentence, were acknowledged by the Supreme Court of Canada in 1999 — as well as by Prime Minister Stephen Harper in his 2008 apology on behalf of Canadians for the country’s history of residential schools.

Lauren Whyte was one of two legal aid lawyers representing client David Chambers — the man whose guilty pleas to assault, break and enter, and uttering threats prompted the case.

Whyte pointed out Chambers may have to return to jail to serve out the remainder of his sentence — suddenly lengthened by the effective revocation of his enhanced credit.

She said the Yukon Legal Services Society is considering applying for leave to appeal the decision to the Supreme Court.

“It’s up in the air right now.”

Whyte noted, as Bauman did, that the impugned provision — 719(3.1) of the Code — was declared unconstitutional by the Ontario Court of Appeal just one month ago.

However, the finding concerned the provision’s relation to another aspect of the Code that has to do with the connection between an offender’s criminal background and their sentence, rather than bail violations.

The case still has the potential to reach the Supreme Court, addressing a key pillar in Ottawa’s tough-on-crime agenda that has not yet been confronted in court at the national level.

Courts of appeal in Nova Scotia, Manitoba and Ontario have accepted the cap of 1.5-to-one for enhanced credit set out in the Truth in Sentencing Act, passed in 2009.

Their interpretations of the law widened judicial discretion to grant that credit.

The Crown appealed Ruddy’s ruling last fall, arguing the sentencing judge erred in her interpretation of the Code’s new sentencing provision and in her constitutional analysis.

For now, Ruddy’s decision no longer has implications for Yukoners picked up by police after already being released on bail for a previous charge.

For roughly the past year, if their case was before the territorial court but not a higher court, those offenders may have been granted enhanced credit because of Ruddy’s precedent-setting decision.

The enhanced credit “discount” can serve as compensation for the fact that remand jail time is frequently considered “hard time.”

It often occurs in overcrowded holding facilities with a harsher security environment and little to no access to training or treatment programs.

Pre-sentence custody is also described as “dead time” because it does not count toward eventual parole nor early release eligibility.