Federal prosecutors in Whitehorse are appealing a Yukon judge’s sentences for two aboriginal offenders that they say were too lenient.

In two different cases, Judge E. Dennis Schmidt of British Columbia, a deputy judge for the Yukon Territorial Court, refused to send two men to jail, noting that Canada’s prison system is already overrun with aboriginal inmates.

Crown prosecutors wanted a 35-year-old Whitehorse bouncer jailed for roughing up a belligerent customer.

In a written decision, Judge Schmidt took note of Donald Tutin’s dysfunctional upbringing and the exemplary life he’s led as an adult. He ruled it would be wrong to send “a success story” like Tutin to jail.

Prosecutors asked for a sentence of six to nine months, following a year of probation.

Instead, Tutin received a one-year suspended sentence.

The next day Schmidt made a similar ruling for Craig Gagnon, 29, of Mayo, Yukon.

Gagnon was caught violating probation when police caught him with cocaine and alcohol.

The defence and prosecution agreed on a six month conditional term, sentencing Gagnon to house arrest.

But Judge Schmidt, noting glowing letters of support from the community, suspended sentencing, concluding, "it would be against the law" to give even a conditional sentence as it equates to a jail term.

The appeals against Gagnon and Tutin have been adjourned so the two men have time to get lawyers.

‘Criminal courts deal mostly in failure’

In his ruling in the Tutin case, Judge Schmidt writes that it’s not fair to “throw away 16 years of good living and being a responsible citizen” over one incident.

“The criminal courts mostly deal in failure: people's failure and their own. It might be shocking to hear, that being said, but in the 40 years that I have been in the criminal justice system, 33 years as a judge, I have seen the courts fail over and over and over again.

“Every time we get a criminal record handed out, which is daily and many times a day, it documents a failure. Pages and pages of courts giving sentences that fail, and people continue to be involved in the justice system.

“And I only say that because we need to, at some point, put our experience together and celebrate success when we see it, which is so rare we forget that we have to celebrate success. And in this case, we have a story of success.”

He also writes that he was once a bartender, and that jailing Tutin would have no effect on the dynamic that exists in drinking establishments.