Kenney’s case against criminal non-citizens

Ron Berry spent nine days in a coma. His wounds were so severe—bleeding in the brain, lacerated spleen, a contusion near the lungs—that doctors weren’t certain he would survive. When Berry’s own family first saw him lying in that hospital bed, swollen and unconscious, they didn’t even recognize him. “Words cannot describe what I saw,” his sister told a judge, months later. “His head looked like a rotted pumpkin on top of a body.”

The man who inflicted the beating was Dylan Lee Morgenrood, a landed immigrant from South Africa. Drunk and belligerent outside a Trenton, Ont., bar, the 23-year-old ambushed Berry from behind and stomped on his face and chest, over and over, until witnesses finally pulled him away. The attack was so violent and bloody, one veteran bouncer testified, that he still has “nightmares about it.”

Morgenrood pleaded guilty to aggravated assault in July 2009 and was sentenced to 3½ years in prison. The real punishment came next: a deportation order. Like thousands of other non-citizens convicted of a crime, Morgenrood was no longer welcome here.

His removal should have been swift. According to long-standing law, any non-citizen sentenced to more than two years in prison has no right to challenge his deportation at the Immigration and Refugee Board (IRB). But Morgenrood did have one option left, a backdoor strategy that many other foreign-born offenders have exploited: he returned to court and appealed his sentence, hoping to be allowed to stay.

It worked. In May 2011, the Ontario Court of Appeal agreed to shave a full 18 months off Morgenrood’s prison term—from 3½ years to two years less a day—allowing him to fight his pending removal at the IRB’s Immigration Appeal Division (IAD), an independent tribunal that has the power to reverse a deportation order. The court sympathized, in particular, with an affidavit from his mother, who said her son was just 14 when he left his home country, never became a Canadian citizen, and has no family left in South Africa. “I fear that deportation will be disastrous for Dylan,” she wrote. “He will have no options, and no opportunity to make something of his life.”

Last month—while still waiting for his IAD hearing—Morgenrood was arrested yet again, this time outside Toronto’s Union Station. Police charged him with eight more crimes, including possession of a restricted firearm with ammunition and two counts of possessing a firearm obtained by the commission of an offence. Now 27, he is back behind bars.

For Immigration Minister Jason Kenney, Morgenrood’s arrest is just the latest example of why the Harper Conservatives introduced the so-called “Faster Removal of Foreign Criminals Act” earlier this year. If the appeal court had upheld his original sentence—instead of ordering what is believed to be the largest reduction of its kind—Morgenrood would have been back in South Africa a long time ago, not taking up space at Toronto’s Don Jail. At the heart of Bill C-43 is a sharp reduction of the two-year threshold for appeals. If passed, only those sentenced to less than six months would be allowed to plead their case in front of the IAD. Anything higher than that, and deportation would be automatic.

In other words, people like Dylan Morgenrood—a repeat offender who nearly killed a man—would not qualify for a second chance.

But as simple as it may sound, the proposed legislation exposes a difficult, if not impossible, balancing act. Although the new rules would undoubtedly speed up the removal of legitimately dangerous criminals, some stakeholders worry that many more undeserving targets will be exiled in the process. As it stands, the IAD has the authority to consider a host of factors, including how long an offender has lived in Canada, the seriousness of the crime and the level of remorse. But if the sentence cut-off is lowered to six months, the majority of foreign convicts—violent or not—will lose that opportunity.

“Nobody wants dangerous people walking around the streets; I have children too,” says Robin Seligman, a Toronto lawyer and former chair of the Canadian Bar Association’s national immigration section. “But I don’t want to see someone separated from their whole lives because they did a stupid thing once. I want those people to have a chance. They won’t.”

How to handle permanent residents who become criminals instead of citizens has been a decades-long struggle for Ottawa. The debate reached fever pitch in 1994 after two high-profile murders in Toronto: the shotgun slaying at a Just Desserts café, and the killing of police constable Todd Baylis. In both cases, the suspects were born somewhere else, never attained citizenship and had previously been ordered deported because of their crimes. Jean Chrétien’s Liberals responded to the headlines with legislation that made it easier to remove such offenders, and in 2002 the law was toughened to include the now-contentious two-year clause.

In truth, little changed. The appeal window allowed people like Sukhvir Singh Khosa, a convicted street racer who killed a Vancouver pedestrian, to stay in Canada years after they were ordered out. One of the most egregious examples is Geo Wei Wu, a permanent resident from China. Guilty of a long list of serious crimes, he appealed his deportation to the IAD, lost the case, then failed to show up for removal. He is now wanted by police in Mississauga, Ont., in connection with a 2011 kidnapping that ended in a man’s death.

The two-year rule also raised a novel—but very controversial—question for the courts: should judges show leniency (i.e. lower a sentence to two years less a day) in order to preserve an immigrant’s hopes of staying?

Their answer, at least in some cases, was yes. Hamidullah Barkza, an Afghan who attacked his wife with a kitchen knife, convinced the Alberta Court of Appeal to trim 2½ months off his sentence so he could apply to the IAD. British Columbia’s top court set its own precedent, ruling that Sritharan Kanthasamy, a Tamil migrant convicted of sexual assault and forcible confinement, deserved 24 hours knocked off his two-year sentence because losing his chance to appear in front of the IAD was “a serious but unintended collateral effect of the penalty” that a citizen would not have to endure. All across the country, other judges have followed the same logic, hesitant to rob convicts of their only real chance to remain in Canada.

Few, if any, were granted a bigger second chance than Dylan Morgenrood. He had the opportunity to turn his life around, to prove he deserved to stay in his adopted country. Now that he’s back in custody, a third chance would be nothing short of a miracle—especially if the new legislation takes effect.

His victim, Ron Berry, will surely not be sad to see him go. “I probably will always feel the need to watch my back from now on,” he wrote in his victim impact statement when his attacker was first sentenced. “It’s all very depressing.”