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(Wesley VanDinter/Getty Images)
(Wesley VanDinter/Getty Images)

Ottawa drops appeal of ruling that gave no jail time to aboriginal man Add to ...

The federal government has dropped its appeal of a ruling that gave an aboriginal man no jail time for trafficking in a large amount of cocaine, an amount that would usually bring a prison sentence of two to five years.

Justice Minister Jody Wilson-Raybould has promised to try to reduce the numbers of indigenous men and women in federal prisons. The proportion currently sits at 25 per cent, although indigenous people make up just 4 per cent of the Canadian population. Federal law since 1996 has required aboriginal offenders to be given special consideration in sentencing.

PROFILE: Jody Wilson-Raybould, the justice minister without precedent

The reason for Ottawa’s decision in the case is unclear. The Public Prosecution Service of Canada had filed a notice of appeal in March with Ontario’s highest court, saying the sentence of 30 months probation given to 40-year-old Robert McGill of Toronto was “manifestly unfit for the gravity of the sentence.” The prosecution service’s notice of abandonment filed this month does not provide an explanation.

Dropping the appeal eliminates the possibility the ruling will get a stamp of approval from a higher court, which could have created a precedent other judges would have to follow. Rulings at the Ontario Court of Justice are not binding on other judges at the same level, or higher.

“Abandoning the appeal in this case of McGill does not bind the Crown to not appeal a similar judgment in a similar case at another time,” Jonathan Rudin, program director for the Aboriginal Legal Services of Toronto, who represented Mr. McGill, said in an e-mail.

Still, it could be a sign that the government is open to bringing back the alternative to jail known as conditional sentences (or house arrest) for all Canadians. A Liberal government created conditional sentences in 1996, but the Conservative government ended them for dozens of criminal offences. In May, Ms. Wilson-Raybould convened a private meeting of lawyers, judges and others in which she was urged to bring back conditional sentences.

“At this point, we have to wait for either another case to make its way to the Court of Appeal … or, more preferably, see the new government amend the Criminal Code to allow for the meaningful use of conditional sentences again,” Mr. Rudin said.

The ruling by Justice Melvyn Green of the Ontario Court of Justice in March was a 19,000-word cri de coeur against the over-incarceration of indigenous people and a rebellion against a convention in which traffickers are sentenced according to the quantity of the drugs they were selling. Mr. McGill was caught with a third of a kilogram, worth $15,000 on the street. Justice Green spoke in the ruling of the necessity to find new sentencing options in the absence of conditional sentences.

“I profoundly doubt whether any community in Canada has experienced as much despair – personal, familial and social – as a result of the abuse of alcohol and drugs as have the communities of First Nations peoples,” Justice Green wrote, adding that this was the first sentence of its kind, to his knowledge.

In an e-mail to The Globe, a spokesperson for the Public Prosecution Service of Canada pointed to a section of the service’s handbook that says prosecutions should not be continued where they are not in the public interest. The spokesperson declined to say more, saying the explanation is subject to lawyer-client confidentiality. The client is Ms. Raybould, who declined to comment.

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