Prosecution policy unfair to Indigenous offenders, says N.W.T. lawyer

Peter Harte wants judges to have greater discretion when sentencing repeat impaired driving offenders.

Lawyer wants judges to have greater discretion when sentencing repeat impaired driving offenders

Defence lawyer Peter Harte says he wants N.W.T. judges to have greater discretion when sentencing repeat impaired driving offenders. (Emily Blake/CBC)

A Yellowknife defence lawyer is voicing concerns that a federal prosecution policy unfairly affects Indigenous offenders.

The Public Prosecution Service of Canada policy says the Crown should seek increased penalties in cases of impaired driving where an offender has a prior impaired driving conviction, unless there are "exceptional or compelling circumstances."

This means if convicted, an offender will be sentenced to a mandatory minimum of 30 days in jail for a second offence and 120 days for subsequent offences. 

The policy gives Crown counsel some discretion to consider things like the nature of previous convictions and sentences, and Gladue factors — an Indigenous offender's unique cultural circumstance, which can include trauma that leads to addictions.

Lawyer Peter Harte said he thinks increased penalties are imposed too often in the territory, and said the policy takes away a judge's ability to take Gladue factors into account when determining a sentence. In cases with Indigenous offenders, judges consider Gladue factors for sentencing options other than jail time.

Harte said automatically imposing jail sentences in these cases fails to address underlying issues like trauma and addiction and that he would like to see more supports in the territory.

"It's just so rare that I deal with people who are criminals in any sort of sense of the word," he said.

"They're not making choices to become offenders, they're not making choices to end up in conflict with the law; they've got a host of other social issues that underlie the conflict."

'That just seems unfair,' says lawyer

The Public Prosecution Service of Canada is responsible for almost all criminal prosecutions in the northern territories, whereas provinces have their own prosecution services and policies.

And according to Harte, the federal prosecution office's policy on increased penalties is harsher than in almost all of the provinces.

In Ontario, for example, prosecutors must seek increased penalties only in cases where the previous impaired driving conviction was within a five-year period. Beyond that it is within a prosecutor's discretion. British Columbia policy sets the time frame within three years. 

Harte said he's seen cases in the N.W.T. where offenders with dated prior offences — even going back 10 years — get jail sentences where it probably wouldn't have been the case in the provinces.

"At some point that just seems unfair that for the rest of your life you're subject to a mandatory minimum penalty," he said.

Because a greater percentage of offenders in the territories are Indigenous, Harte said the federal policy also goes against the Truth and Reconciliation Commission's Calls to Action to address the overrepresentation of Indigenous offenders and depart from mandatory minimum sentences.

The mandatory minimum sentence is not automatic; the Crown must apply for it. In these cases, the law dictates the Crown must notify the accused (before they enter a plea) that it's going to seek increased penalties.

Mothers Against Drunk Driving supports policy

Andrew Murie, the CEO of Mothers Against Drunk Driving Canada, supports the federal prosecution office's policy. He said the policy takes impaired driving seriously and he would like to see the same process across the country.

He also acknowledged the importance of addressing social issues like addictions and said he would like to see more support for offenders.

"When you get the person in the system for a second time, it's not just about penalizing them. It's assessing what their needs are and so you know if they do have overlying issues like addictions, then let's get them help for that," said Murie.

The Public Prosecution Service of Canada said it is open to hearing concerns with its policies but said there should be no assumption that any changes will be made.