SOMBA K'E/YELLOWKNIFE
A lawyer representing a woman who spent 12 consecutive days in RCMP cells while awaiting court dates is seeking a reduced sentence because of what he describes as a lack of equal treatment before the law.

A lawyer representing a 19-year-old woman who spent 12 consecutive days in RCMP lockdown awaiting court dates has filed a charter application claiming his client's constitutional rights were violated, saying the facility is not suitable to hold prisoners for long periods of time. - NNSL file photo

Tamara Simpson, 19, pleaded guilty last month to trafficking cocaine after she sold a gram of the drug to members of a federal RCMP investigations unit last summer. Simpson was charged Feb. 29, after which she spent nearly two weeks in a barren, windowless police cell awaiting various court dates because the only female jail facility in the territory is located in Fort Smith.

Defence lawyer Peter Harte subsequently filed a charter application claiming the woman's constitutional rights were violated by her lengthy stay at the RCMP cells, which normally are only supposed to hold prisoners for a day or two. Harte recently took over Simpson's case from her previous lawyer Bonnie Gembey.

Territorial court judge Robert Gorin has already indicated to the court that he expects to hand down a sentence of around 10 months but Harte is arguing Simpson should receive extra credit for her time in RCMP cells.

This may be difficult with the passage in 2010 of the previous Conservative government's Truth in Sentencing Act, which limits judges to granting 1.5 days credit for each day spent in pre-sentencing custody.

"There were times when, for instance, at the Don Jail (in Toronto), they were giving them four days (for each day served in custody before trial) but judges had discretion to do whatever they wanted with it," said Harte. "But then, the Conservatives decided, I have no clue why, judges were giving too much and so they brought in the Truth in Sentencing Act and that's where the the cap comes from."

Harte said filing a charter application claiming a person's rights and freedoms have been violated is the only way to get around the cap.

"The way you get around that is if the conditions the person was held in was bad enough to be a charter violation, then you can get enhanced credit," said Harte, adding it is not clear yet whether Simpson's case qualifies as a charter violation.

"It requires some level of badness. The fact that you were held in segregation or something like that once upon a time would be enough to get you enhanced credit. But it's not now."

Harte said he hopes to argue the matter in about a week but the Crown prosecution office is waiting for the RCMP to deliver a response to Simpson's charter application.

Charles Dent, chair of the NWT Human Rights Commission, said it does not seem right to hold women in RCMP cells for days on end while they are awaiting court dates.

"I don't think it's right that somebody would sit in the cells there for that period of time," he said. "But I'm not in a position to decide if there's a violation."

As a member of the commission, Dent said he does not have authority to make decisions on human rights complaints. He said complaints need to be filed by individual complainants, although corporations - which are now consider 'people' under the law - can file complaints as well. Dent said he has not heard of people filing complaints about the lack of female jail facilities in the capital. Harte said he has not discussed the possibility of filing a human rights complaint with Simpson but said she has no complaints about the treatment she received from RCMP officers during the time she spent in cells.

"They were just stuck with the situation they were in," he said.

Harte said he has represented other women who have spent stints in the RCMP cells while awaiting court dates before and he can't understand why a facility cannot be found or built in Yellowknife.

"It would surprise me that there's nothing in the way of a building in Yellowknife that couldn't be converted," he said. "Maybe I'm wrong but there seems to be buildings that are just not occupied. I don't know if anyone has given any thought to that. I don't know what the transport expense is but flying people to Fort Smith must involve significant expense."

RCMP spokesperson Const. Elenore Sturko stated in an e-mail RCMP won't be releasing any information prior to court proceedings.

Gorin told the court on Tuesday he would not make a decision before hearing submissions from the Crown and defence.

He adjourned the matter to April 12.

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