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.”