Criminal Law

Balancing harsh reality of prison and respect for the court

By Randy O’Donnell, AdvocateDaily.com Associate Editor

It’s important to maintain dignity and respect for the court when advocating a lesser sentence for a “combative” client, Toronto criminal defence lawyer Tyler Smith tells AdvocateDaily.com.

Smith, partner with Hicks Adams LLP, recently faced that situation while representing a client called to testify against a former co-accused in a first-degree murder trial.

He explains that his client, already serving a life sentence with no chance of parole for 25 years for the murder conviction, was placed in the difficult position of being compelled to testify when doing so would have branded him a snitch on his return to prison.

“When asked if he wanted to be sworn, he embarked on the use of really foul language and gestures toward the judge and court staff, and refused even to be sworn in as a witness,” Smith says.

“He committed contempt in a most spectacular way, was cited and returned to the penitentiary to await sentencing on that charge, but with his reputation in the prison subculture intact.”

Smith’s client was convicted of the 2014 murder of a Pickering, Ont., woman after confessing to police on tape during a sting operation that he had been hired by the woman’s husband to commit the crime.

He and the husband were initially co-accused, but their trials were separated to avoid delays.

Smith says his client was, after his life sentence was meted out, taken back to court to testify against the husband in his trial and declined to run the risk of being branded a “rat” by fellow inmates by testifying.

“The courts recognize that as a real factor but do not consider it to be a mitigating factor because we need witnesses to prosecute the most serious offences,” Smith says. “On balance, the court cares much less about the inmate's reputation in prison than it does about the administration of justice and the proper prosecution of serious charges.”

Upon his return for sentencing on the contempt charge, the man was given an additional four years to run concurrently with his life sentence. Smith says contempt sentences typically run from 18 months to five years.

“You stand up and address the court as ‘Your Honour’ and do the best you can to acknowledge the bad conduct, not to justify it, but to explain why it’s happening,” he says.

“In this instance, I cited case law that demonstrated that courts have acknowledged that testimony by inmates can lead to violence or even death, and tried to explain my client's difficult situation.

“He may never be paroled, but he sure won’t be released in the next 20 years, and that’s an awfully long time to be looking over your shoulder for someone coming at you with a shiv," Smith says.

“The best thing is to maintain the dignity and respect on the counsel side of things and paint the best picture of the client’s position and the harsh reality of the decision they have to make.”

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