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Custody doesn't violate Charter: appeals court
Decision does not affect sentence of woman granted 6.5 days credit for each day held in drunk tank in 2016

John McFadden
Northern News Services
Friday, July 14, 2017

The NWT Court of Appeal has overturned a judge's decision to give a woman 6.5 days credit for each day she was held in RCMP cells, otherwise known as the drunk tank.

Normally, prisoners are given 1.5 days credit for each day served in pre-trial custody. In 2016, Territorial Court Justice Robert Gorin gave Tamara Simpson extra credit for the 12 days she served in RCMP cells while awaiting sentencing for selling cocaine to an undercover cop in 2015.

He reduced her sentence from 10 months to eight, stating the practice of keeping women in RCMP cells is excessively harsh and comparable to solitary confinement.

According to court documents Simpson had already pleaded guilty when she was arrested on Feb. 29, 2016 for missing a court date. That's when she was held in the barren cell for almost two weeks. When Gorin heard that he immediately ordered Simpson be moved to the women's correctional facility in Fort Smith.

Brendan Green, Crown counsel for the case, said the appeal was launched not to extend Simpson's sentence but to avoid a precedent set by Gorin's ruling.

"Our position was that (Gorin's) interpretation and application of the Charter just wasn't correct, so we wanted a decision saying that," he said.

In the ruling, the court of appeal stated Gorin did not define what would be a female remand facility and what would be reasonably close to Yellowknife.

"There was simply no basis to find that there was unequal treatment of (Simpson) ... arising from state conduct," stated the court.

"There was a form of state sponsored remand facility available to hold (Simpson), namely the RCMP holding cells."

The court of appeal also disagreed with Gorin's assertion that RCMP cells are excessively harsh.

"She was afforded with some means of entertainment," stated the court of appeal.

"She was given the occasional opportunity to smoke a cigarette."

The decision also states she was given three meals a day, an afternoon snack and coffee, juice or tea while in RCMP cells. While the appeals judges concede there are always lights on in cells, "the lights can be toggled between day and night time settings at the prisoner's request."

As well, appeals court pointed out that Simpson made six court appearances in the 12 days she was held at RCMP cells but she could have appeared via closed-circuit television from Fort Smith had she or her lawyer opted for that.

"The respondent's arrival and detention in RCMP cells for the period in question was, practically speaking, largely a consequence of choice," states the decision document.

The final major aspect of Gorin's ruling singled out as a flaw by the court of appeal is a clear definition of what is defined as equal treatment between genders.

The decision quotes from a 1989 B.C. court decision that states "not every difference in treatment will necessarily result in inequality and that identical treatment may frequently produce serious inequality."

The holding cells at RCMP headquarters in Yellowknife are eight-and-a-half feet by 11-and-a-half feet.

They have no windows and lights are kept on 24 hours a day. There are no visitors or phone calls other than from lawyers and prisoners do not get a pillow.

Male prisoners awaiting sentencing are held at the North Slave Correctional Complex (NSCC), where they have access to phones, TVs and get time outside.

The women's facility in Fort Smith is a townhouse complete with bedrooms, bathrooms, kitchen and living room facilities. Prisoners also have access to an exercise room and eat their meals in a dining room.

Following Gorin's ruling in the spring of last year, the territorial government created space at NSCC for women awaiting trial. Some female prisoners are still occasionally held in RCMP cells but only for a night or two at a time.

Peter Harte, Simpson's lawyer when she was sentenced, told Yellowknifer yesterday he thinks it was important to bring the situation to light.

"Regardless of whether the court of appeal agreed with his analysis, it was important for him to ensure (female) prisoners were treated appropriately," he said.

"That was the message that he wanted to communicate and the government got it loud and clear. It's made a big difference in the way they are treated."

Women held at the women's correctional centre in Fort Smith are able to appear by video for all court appearances except trials.

The NWT court of appeal is made up of local Supreme Court judge Shannon Smallwood as well as judge J.A. Slatter and J.A. Watson, both from the Alberta Court of Appeal.

The decision was released on July 11.

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