John Hill |
Jacob Lilly was sentenced to 24 months consecutive to a sentence he was serving at Atlantic Institution, a maximum-security penitentiary in Renous, N.B. He had pleaded guilty to assault causing bodily harm in provincial court in February 2022 for taking part in a beating of fellow inmate Tyler Gray on Dec. 17, 2018.
The court was presented with videotaped evidence showing Lilly as a participant in the punching, kicking and stabbing of Gray. Gray suffered a punctured and partially collapsed lung, six stab wounds and a cut on his arm. The video showed Lilly taking part in the kicking, but no evidence connected Lilly to the stabbing.
The Crown proposed a 30-month consecutive sentence, while the defence argued that six to eight months was more appropriate. Lilly appealed to the New Brunswick Court of Appeal when the two-year consecutive sentence was imposed. The Appeal Court’s decision was handed down on Jan. 25, 2024 (R. v. Lilly 2024 NBCA 14).
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Dealing with the first of these issues, the New Brunswick Appeal Court embarked on a rather lengthy discussion of how motivation as a component of moral blameworthiness can impact the creation of an appropriate sentence. The case of Cormier v. R. 2022 NBCA 44 permits a judge to consider motivation. The problem in citing Cormier is that it was a case where retribution for vandalism was taken in the community. It did not deal with a prison situation.
There might be motivation in prisons, but in most cases, it remains unspoken. Inmates feel an obligation to adhere to what is often referred to as the “con code.” One such norm that prisoners follow is that it is justifiable to do such acts as are necessary to remove a suspected sex offender from a range. Failure to abide by the con code could subject an offender to personal harm should the prisoner fail to comply with this expectation. Our courts and, in many cases, the lawyers who are defending a prisoner charged with an act of violence are oblivious to the con code, and no evidence of its existence is put into evidence. Without acknowledging that a different set of values can exist in prison than in the community, courts assume that when the source of the offender’s aggression cannot be determined, the dangerousness of the offender must be considered, and a higher penalty imposed (R. v. Kravchenko 2020 MBCA 30; Steeves v. R. 2010 NBCA 57).
The second issue the Appeal Court had to determine was whether the fact that in 2020, Lilly was convicted of assaulting a peace officer should be an aggravating factor in punishing an assault that took place two years earlier. In their judgment, the three-judge panel stated that the issue was unimportant since the sentence would not have been different even if the 2020 offence had not been committed, and cited R. v. Pond, 2020 NBCA 54. An appellate court intervenes only if there has been an error that impacts the sentence (R. v. Friesen 2020 SCC 9).
The final issue dealt with the proper consideration that institutional charges should have in a criminal court. Inmates are subject to disciplinary charges that are regularly dealt with upon issuance of an Inmate Offence Report and Notification of Charge under the Corrections and Conditional Release Act.
An inmate can be punished by fine or detention within the prison without police involvement. Is it proper to use a record of these disciplinary offences when an offender comes before a criminal court for sentencing? Here, the Appeal Court noted that Lilly’s institutional record showed numerous instances of misconduct. Nonetheless, the Appeal Court upheld the 24-month consecutive sentence that the prison misbehaviour would not have affected the ultimate disposition.
However, the court added certain obiter dicta that might be quoted in later cases. It concluded that disputed institutional records must be proven when referred to in a presentence report. Here, the defence counsel had admitted the veracity. The court treated this matter as a nonissue with the admission of the accuracy of the prison disciplinary record and found it played no part in determining the proper sentence to be imposed.
These are issues that have little impact on the routine sentencing of criminals in the community. However, the decision will likely receive the attention of the prison law bar in the defence of criminally charged inmate offenders.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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