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| John Hill |
However, the reality is that a criminal record can have far-reaching implications, affecting job prospects and even international travel. While some may find ways to manage this burden over time, those who end up in prison often face the harshest penalty — a criminal record that can haunt them for life.
In a penitentiary, the case management team examines one’s criminal record to discern a pattern of errant behaviour in deciding what level of security is required. It also determines what programming should be addressed and how the parole board should look upon the offences.
The weight of a criminal record was starkly evident in Michele Coscia’s parole hearing. The panel, fixated on his alleged ties to organized crime, initially denied his release due to his evasive responses. However, he managed to overturn this decision in an appeal to the board’s appeal division. The Department of Justice then took the case to the Federal Court, which ultimately ruled that a conclusion about Coscia’s involvement with “traditional organized crime” could not be drawn without a Criminal Code conviction for that offence (Coscia v. Canada (Attorney General), 2005 FCA 132).
The enduring effect of a criminal record was recently at the heart of an unreported criminal case brought in the Ontario Court of Justice on May 31, 2024 (R. v. McMorris). McMorris was an inmate of Warkworth Institution charged with having a cellphone in his possession. Ordinarily, such an allegation would be handled internally in the institutional disciplinary court after a correctional officer completes an Inmate Offence Report and Notification of Charge. Had that been done and the inmate convicted in disciplinary court before an independent chairperson, a fine could have been imposed, or the inmate could have suffered the loss of privileges. The matter would then be recorded on the inmate’s institutional file and become fodder for later parole board questioning.
The Correctional Service of Canada chose a different and more expensive route. It laid a criminal charge and paid two officers overtime to transport the inmate and testify against him in provincial court in Cobourg. McMorris was represented by Lockyer Zaduk Zeeh lawyer Jeffrey Hartman. The Crown offered a 60-day sentence concurrent with McMorris’s life sentence. Obviously, it was a criminal record that was being sought. The client refused and opted to stand trial.
After arraignment, Hartman advised the court that the facts of McMorris’s illegal possession of a cellphone were undisputed. The only item in question was sentencing. Hartman proposed that the matter could be resolved by the imposition of a conditional sentence requiring the inmate client to be of good behaviour for 60 days and make a small charitable donation. The defence position was accepted by the court.
McMorris was never convicted of illegal possession of the contraband item. It cannot appear on his criminal or institutional record, and he will not be required to answer for it should he later apply for parole.
Many people see court cases ending with a win or a loss. Hartman can chalk this case up as a win. The real losers were Canadian taxpayers who had to bear the expensive costs of paying officers to attend court, transporting the inmate to the trial, bringing in a Department of Justice lawyer and further clogging the overburdened court dockets that could have dealt with more serious offences.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an 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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