The battle over sentencing and judicial discretion came home for Yukoners on Tuesday, as the Crown tried to overturn a lower court judge's decision that seeks to soften a key plank of Ottawa's tough-on-crime agenda, with potentially nationwide implications.

The day-long showdown in the Yukon Court of Appeal pitted two local legal aid lawyers against a prosecutor from Halifax in a hearing that brought constitutional issues and aboriginal status into stark relief and cut to the core of the Conservatives' Truth in Sentencing Act.

The Crown was appealing a 2013 finding by territorial court Judge Karen Ruddy.

Last fall, she declared unconstitutional a new provision of the

Criminal Code that precludes inmates who languish in pre-sentence custody from "enhanced credit” in certain circumstances.

Ruddy's decision upended federal legislation passed in 2009 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.

That "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.

Lauren Whyte represents client David Chambers — the man whose guilty pleas to assault, break and enter, and uttering threats prompted the case. Whyte noted the "unique systemic factors” that have led to aboriginal offenders' over-represention among Canada's prison population.

She said a legacy of colonialism, residential schools and dislocation have resulted in endemic social problems like substance abuse and a lack of community supports and employment opportunities that persist today.

These have been acknowledged by the Supreme Court of Canada — resulting in court recognition of "Gladue factors,” which can serve to mitigate an aboriginal offender's sentence — as well as by Prime Minister Stephen Harper in his 2008 apology on behalf of Canadians for the country's history of residential schools.

Whyte told the three-judge panel the provision violates section 15 of the Canadian Charter of Rights and Freedoms, which states that every individual is equal before the law, "without discrimination based on race, national or ethnic origin....”

The impugned provision serves to "magnify or entrench the systemic discrimination against aboriginal people,” said her co-counsel, Brook Land-Murphy.

Because the enduring social issues —particularly substance abuse — associated with that discrimination undermine aboriginal offenders' ability to comply with bail conditions—compelling still further, albeit lesser, criminal charges — people of aboriginal descent are much more likely to be snared by the legislation.

"It can be inferred that a disproportionate number of aboriginal offenders will be caught up by the impugned provision, barred from enhanced credit and spend more time behind bars,” Whyte said.

"They need to be treated differently in order to achieve a standard of equality,” she added, noting the "patterns of neglect and discrimination that have characterized Canadian history.”

Whyte warned against falling back on outmoded, "damaging stereotypes,” like "the idea that they're serving longer, harsher sentences ... because there's something wrong with them.”

She cited the 2011 Royal Commission Report on Aboriginal Peoples as well as the Canadian Bar Association before reiterating that "removing the benefit of the Gladue factors ... continues the perpetuation of their historic disadvantage.”

She said that a point raised by the Crown about opening the floodgates to claims around judicial discretion based on section 15 of the Charter was "not a concern.”

Land-Murphy argued the legislative curtailing of enhanced credit breaches Canadians' right to life, liberty and security and violates Charter principles of fundamental justice.

She said that the four-year-old Criminal Code revision crosses the line into "over-breadth, arbitrariness and disproportionality.”

She argued that the effect on offenders of the provision was "grossly disproportionate” to the legislation's stated shoring up citizens' faith in the justice system.

Land-Murphy also rejected the Crown's argument that the provision prevents overcrowding and abuse of the justice system, strengthens public confidence in it, and enhances the safety and security of Canadians through offender relocation.

The federal government has suggested that "some lawyers deliberately delay proceedings so their clients will be given the two-for-one credit (a ratio allowed until the Truth In Sentencing Act came into effect in 2010), and thus shorter terms of imprisonment automatically,” according to a Library of Parliament research publication from 2009.

Rather than unclogging the courts, however, Land-Murphy suggested there is scant evidence that this is common practice.

Indeed, the provision will likely result in longer sentences and further overcrowding, she added.

She also rejected the Crown's argument that the provision would reduce disparities between sentences for similar crimes.

Because some segments of the population are less likely to breach their bail conditions, they would in turn receive lighter sentences by way of the enhanced credit denied aboriginal offenders.

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

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

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

If their case is before the territorial court, but not a higher 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,” Noel Sinclair, a Crown prosecutor, told the Star last year.

He added that he was not aware of any parallel decisions in other territories or provinces.

The appeal court judges reserved their decision until a later date.

Regardless of the ruling, the case has the potential to reach the Supreme Court of Canada, addressing a key pillar in the 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. But their interpretations of the law widened judicial discretion to grant that credit.