Whitehorse Daily Star

Court of Appeal reduces man’s jail term

The Yukon Court of Appeal has cut a sentence of more than three years to just less than two years.

By Stephanie Waddell on August 7, 2017

The Yukon Court of Appeal has cut a sentence of more than three years to just less than two years.

The decision in Arthur Joe’s case was released Friday.

The court of the appeal ruled the sentencing judge did not take into account Joe’s aboriginal background in determining the sentence.

Joe had been found guilty of refusing to provide a breath sample, impaired driving and breaching an undertaking.

“Here, the trial judge erred in principle in three ways: failing to give tangible effect to Mr. Joe’s Aboriginal background; in effect, requiring Mr. Joe to demonstrate a causal connection between his Aboriginal circumstances and the offence; and failing to give proper or adequate weight to the objective of assisting in Mr. Joe’s rehabilitation,” the decision reads.

“These errors significantly impacted the sentence and require that this Court consider the fitness of Mr. Joe’s sentence afresh.

“A global sentence of 23 months and five days’ imprisonment (before credit for pre-sentence custody) plus three years’ probation is a fit sentence for Mr. Joe.”

The 20-page decision is signed by court of appeal Chief Justice Robert Bauman, Justice Ian Donald and Justice Bonnie Tulloch.

The decision recounted the circumstances of the case. It goes back to 2014, when Joe was charged with and then found guilty of the offences.

“Mr. Joe has a lengthy but somewhat dated criminal record of 12 previous convictions for drinking and driving offences, four convictions for driving while prohibited, numerous convictions for failing to comply with court orders, two convictions for spousal assault, and a number of convictions for property-related offences,” it’s noted.

“The offences occurred from 1970 to 2005. Mr. Joe did not commit any new criminal offences in the eight years leading up to the present charges.”

The decision then highlights Joe’s background as a member of the Champagne and Aishihik First Nations.

The 65-year-old was raised by his maternal grandparents and was sent to the Lower Post Residential School when he was five.

“His parents drank frequently, so his grandparents were keen to keep him out of harm’s way,” it’s noted.

“His mother died when he was nine years old after she froze to death while intoxicated.

“In his early years, Mr. Joe led a traditional way of life with his grandparents, learning his language and culture, and growing up in the wilderness on his grandparents’ trapline. His grandparents were considered leaders in their community.

“At age five, Mr. Joe was sent to the Lower Post Residential School in northern B.C. The school had a reputation as one of the more repressive and brutal residential schools in Canada.

“Mr. Joe says he was physically and sexually abused during the 10 years he spent at the school — both by staff members and other students. He blames residential school for the suicide of his brother and for causing his sister to abuse alcohol, which ultimately led to her death.

“There is evidence that while at residential school, Mr. Joe looked out for younger students. Mr. Joe’s daughter recalls hearing a story from another former student who said Mr. Joe took a beating that was meant for him.”

It was also at the age of five that Joe first used alcohol and cigarettes.

His use rose over the years, and eventually he was addicted to alcohol. It was when he was sentenced to penitentiary time for impaired driving that he says he “smartened up.”

Joe struggled to comply with parole conditions after being released. He did not face any charges until 2014, when these charges were laid.

The decision goes on to highlight Joe’s distrust of the RCMP – particularly following the death of a woman with whom he had one of his most significant personal relationships.

The woman died in police cells after being picked up for public intoxication.

At the coroner’s inquest into her death, Joe blamed her death on RCMP negligence.

He also alleged he was assaulted by two RCMP members in 2003, though charges against the members were eventually stayed.

Joe is also an artist, spending much of his time painting and carving and has earned money from his artwork.

He’s also used money from the residential school settlement to buy lumber and supplies to build a camp near Haines Junction. He is aiming to turn that into a tourism venture or a healing centre for those struggling with addictions and residential school trauma.

The judges’ decision then goes on to recall the reasons for the territorial sentence, which highlighted his past record and gave only a limited amount of weight to his aboriginal heritage.

“He found that Mr. Joe’s moral blameworthiness was extremely high because he is aware of his issues, is well-spoken and was able to remain sober for those eight and one-half years,” he said.

“This was reflected in his criminal record with the gap in offending between 2005 and 2014.”

The decision then goes on to note submissions that came forward in the case and cite case law that emerged during the appeal.

“By effectively ignoring Mr. Joe’s background, it is self-evident in my view that the sentencing judge committed an error in principle that impacted the judge’s analysis leading to the sentence,” it reads.

“On this ground alone, appellate intervention is warranted.

“For the sake of completeness, however, I would identify a further error in principle.

“In my view, the judge erred in his consideration of the objective of assisting in the rehabilitation of Mr. Joe.”

The court of appeal found a fit sentence would be 23 months and five days at 12 months for refusing to provide a breath sample,11 months for impaired driving and five days for the breach.

“I would credit the 19.5 months of pre-sentence custody as follows: 10 months’ credit against the sentence imposed on (refusing to provide a breath sample) and 9.5 months’ credit against the (impaired driving) offence,” the decision reads.

“This results in a net sentence of 3.5 months plus five days, which Mr. Joe has already served.”

Comments (13)

Up 4 Down 3

L.Szigety on Aug 12, 2017 at 11:33 pm

There is no way you are going to try and whitewash the history of what happened to residential school victims simply by reiterating that his grandparents sent him there. While he may have been introduced to alcohol early by relatives...it wasn't they that raped and abused him.

The fact remains that the Sixties Scoop happened, and that he and many others suffered miserable and atrocious torture while housed in those places. And the point still stands, that after such horrendous treatment, very little assistance existed for these people once they got out, himself included.

The issue here...and the most important issue in this case...is whether jail itself is/was actually going to lead him to a proper rehabilitation instead of relapsing back to the same ways. I am not suggesting he get no jail time at all, but I would rather question whether the jail itself is the proper medium for fixing his substance abuse issues...and that those issues stem from much deeper problems which cannot easily be disconnected from the afore mentioned behavior.

If the suggestion is more jail time, then there needs to be an honest connection between the time he serves, the nature of his conditioning and how it is dealt with. If nothing is done inside then he will simply get back out and relapse again...repeat ad nauseum. All a longer sentence does in such cases is prolong the inevitable.

You would have as much luck jailing fat people to combat diabetes

Up 7 Down 3

to szegity on Aug 11, 2017 at 4:19 pm

Read the article, Szegity. Nobody took him by force and forced him to stay at the residential school. His own parents were not looking after him. His grandparents sent him, believing he would be safe there. Their trust was betrayed. But at least read the story before you beak off about people being racist and not caring that he was 'taken by force', etc. And who do you think 'introduced him to alcohol'? It wasn't the people at the residential school.

"The 65-year-old was raised by his maternal grandparents and was sent to the Lower Post Residential School when he was five.
“His parents drank frequently, so his grandparents were keen to keep him out of harm’s way,” it’s noted.
“His mother died when he was nine years old after she froze to death while intoxicated.

“In his early years, Mr. Joe led a traditional way of life with his grandparents, learning his language and culture, and growing up in the wilderness on his grandparents’ trapline. "

Up 44 Down 1

bad call on Aug 8, 2017 at 6:59 pm

Judge Luther made the right call here. Any drunk driver is putting lives at risk today, no matter what their personal history. It looks like Luther had enough of Arthur's drunk driving. I just hope nobody gets killed by this man as a result of the second judge's interpretation of what the priorities are in sentencing with drunk drivers. First priority: safety of the public. Second priority: treatment. Third priority: what drove them to do the crime - in this case, theoretically his difficult upbringing and residential school.

But to say, "I was drunk!", when you kill someone drunk driving, is no excuse whatsoever, and I don't think a Gladue report is going to help bring any kid back if they die on a table in the hospital.

Up 9 Down 54

L.Szigety on Aug 8, 2017 at 6:27 pm

Really sad that the only thing people see in this article is "native ancestry" but not the physical and sexual abuse as a child in a residential school...nor being introduced to alcohol at the age of 5...Are you people seriously that blinded by racial hate that you can't see a victim?
What help has this person been offered since the abuse? What has been done to assist him through his pain and suffering?

All I read is a bunch of racist BS comments that are ignorant of the Sixties Scoop. Children torn from their families by force and forced into facilities that abused them physically, mentally and sexually, for decades...all for their "benefit". What if it was your kid that went through that...and had no help after being released from that type of torture...where would your kid turn when shunned by everyone?

You people really should sit down with residential school survivors and listen to the stories...and I doubt you would have a dry eye over it. Because if you can listen to someone talk about being raped as a child, and not have a single emotive response, then perhaps a certain level of psychopathy exists within you.

Schadenfreude...look it up

Up 41 Down 2

FCO on Aug 8, 2017 at 3:34 pm

I agree with using gladue in some cases but not all. What happens if this guy gets behind the wheel again drunk and kills someone? Is the reason being that he's aboriginal and had a rough childhood? Um... no the reason is he has a problem. Treat the issue at hand not what happened in the past. If you commit the crime you should do the time. You cannot keep blaming your past for your future offences. When does the Gladue principle lose it's validity in these cases?

Up 50 Down 13

drum on Aug 7, 2017 at 9:18 pm

if i have aboriginal ancestry i get a free of jail card

Up 56 Down 12

yukon56 on Aug 7, 2017 at 8:54 pm

If you were white you would serve the full sentence. Again a FN get out of jail card

Up 58 Down 10

jc on Aug 7, 2017 at 8:25 pm

I wonder if Joe's future victims will take into account his Aboriginal background and of course his ancestors residential school when they are hurt by his chronic drinking and driving. The Liberals are turning Canada's justice system into a complete sham. Its time to take the blindfold off old lady justice. They are also breeding racism.

Up 54 Down 8

Dallas Schaber on Aug 7, 2017 at 5:54 pm

What a friggin joke!!!

Up 57 Down 4

Just Sayin' on Aug 7, 2017 at 5:13 pm

This is BS. Drunk is drunk. If one gets behind a vehicle then they are stating they are accepting of all the laws which apply to driving. At least, send him for treatment and/or get help. This is not going to prevent him from committing this crime again. Distrust of a system does not allow one to openly abuse the system.
I sincerely hope he does not hurt someone with his addiction. I am not sure what else to say. Gladue reports are ridiculous and do not provide justice although neither does the justice system.

Up 45 Down 4

Kluane on Aug 7, 2017 at 3:43 pm

Arthur Joe has a very serious ongoing life problem of drinking and driving, and making a "CHOICE " to change...THAT HE can make and do on his own.. I, as his only sister left " totally disagree " that his sister or brother had any part of HIS alcoholic life or drunk driving.!!!!..He did not have any part of our lives or being with his family for 50 years or was never around our brother or sister or me for any of those years....He chose to stay away from us All..and he still chooses to today...Don't put blame upon our sister or brother, we had nothing to do with what and how Arthur chose to live his life...
He doesn't even know what my favorite color is.. why ? Because he chose his own life, the way he lives it..cry somewhere else, TIRED of our names mentioned in regards of Your REPETITIVE Faults...Keep "Your REPETITIVE excuses to yourself and keep me and my brother and sister OUT of YOUR court system..
Quit using our names for YOUR FAULTS in your life and in the court system..Thank you. (wish I was a witness, you would have paid for your lies of us).

Up 65 Down 5

Joe citizen on Aug 7, 2017 at 3:09 pm

I'm sorry. What does the fact that he is an aboriginal person have to do with anything when it comes to drunk driving?

Up 56 Down 6

Thomas Brewer on Aug 7, 2017 at 2:46 pm

What a broken system.

no longer "all equal under the law".

Add your comments or reply via Twitter @whitehorsestar

In order to encourage thoughtful and responsible discussion, website comments will not be visible until a moderator approves them. Please add comments judiciously and refrain from maligning any individual or institution. Read about our user comment and privacy policies.

Your name and email address are required before your comment is posted. Otherwise, your comment will not be posted.