A territorial court judge's rejection of part of the federal government's tough-on-crime agenda faces its first test, as the Crown has filed an appeal on a ruling from last month.

Judge Karen Ruddy declared unconstitutional a provision of the Criminal Code which precludes jail inmates who languish in pretrial custody from enhanced credit in certain circumstances.

The decision upends legislation passed in 2009 that states individuals forfeit the luxury of 1.5-to-one credit if they have been accused of an offence, subsequently released on bail or other court process and then arrested and charged again.

Previously, judges could grant more credit for time served in pre-sentence custody, commonly subtracting two or three days from a sentence for every day spent in jail.

Since the federal Truth in Sentencing Act came into effect in 2010, each day served in pre-sentence custody can knock off no more than 1.5 days from a sentence, and only "if the circumstances justify” enhanced credit.

Last month, Ruddy wrote an extensive ruling in the case of David Chambers, a member of the Champagne and Aishihik First Nations who pleaded guilty to assault, break and enter and uttering threats.

On Sept. 30, she gave him 15 months in jail, of which Chambers had served more than half in pre-sentence custody by that date.

According to the new provisions, Chambers, 31, would have been limited to one-to-one credit because he had been detained by police while out on bail for an earlier charge.

Denying enhanced credit to individuals in such circumstances was a crucial change from the Criminal Code of years past wrought by the Truth in Sentencing Act.

Ruddy granted Chambers enhanced credit nonetheless, enabling him to walk from the courtroom a free man.

She said in her ruling the law is unconstitutional. It violates Sections seven and 15 of the Canadian Charter of Rights and Freedoms, she wrote, which grant citizens the right to life, liberty and security and equal protection under the law without discrimination based on race or ethnic origin.

Ruddy said the new law "places an excessive limit on pre-sentence credit for a subset of offenders ... has a grossly disproportionate impact on aboriginal offenders and is overbroad in its reach such that it offends ... the Charter.

"The inescapable conclusion is that aboriginal offenders will, on average, serve longer sentences in jail,” she said.

Ruddy took issue with how the new provisions take away power from judges to factor a defendant's aboriginal status into the sentence.

Ruddy argued that alleged offenders with poor employment records, substance abuse issues and unstable support networks are more likely to be detained, "even though these are the very results that flow from the Canadian history of colonialism, dislocation and residential schools.

"These very same factors lead to increased difficulty in complying with conditions on bail despite the best of intentions, particularly when one considers the inevitable impact of substance abuse on compliance rates.

"This, in turn, will lead to a disproportionate number of aboriginal offenders being limited to one-to-one credit.”

Ruddy further stated that Chambers was not technically detained while out on bail in the first place, another reason she considered him eligible for enhanced credit.

The Crown's notice of appeal argues Ruddy erred in her interpretation of the Criminal Code's new sentencing provision and in her constitutional analysis.

The Crown asserts the new provision does not "serve to perpetuate systemic racial discrimination” or "offend the principles of fundamental justice,” as Ruddy wrote.

The Crown also states that Chambers was indeed detained, precluding him from enhanced credit, and that the 15-month sentence was too light for the severity of his crimes.

As it stands, the decision has implications for Yukoners picked up by police after already being released on bail related to a previous charge.

If they are convicted in territorial court, they may be granted enhanced credit because of Ruddy's precedent-setting decision.

"It has particular significance to Mr. Chambers but also, because of the principle of precedent, other aboriginal offenders are able to rely upon that judgment in their own cases,” said Noel Sinclair, a Crown prosecutor.

A higher court conviction would not yet incorporate her ruling.

Sinclair added that he is not aware of any parallel decisions in other territories or provinces.

Whether the decision will stand — and be applied across the territory — will be determined after a hearing by the Yukon Court of Appeal.

The date for the appeal hearing has not yet been scheduled.

Over the past several years, 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.

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

The courts decided judges could apply the 1.5-to-one ratio not just in exceptional circumstances — as the act might have it — but for the purpose of "lost” parole consideration or remission.

Time in pre-sentence custody is often considered "dead time” due to detention centres' poor conditions, lack of rehabilitation and education programs and loss of time used toward parole eligibility or remission.