Why are judges giving immigrants who commit serious crimes a second chance?

‘How far are the courts prepared to go in bending those rules?’

Wanted: An explanation

Canada Border Services Agency

When his son was born, Hamidullah Barkza celebrated the occasion with an epic bender. For eight straight days, the Red Deer, Alta., resident skipped work and pounded the bottle, pausing only when he passed out. On the night it finally ended—April 18, 2008—Barkza stumbled into the bedroom and plopped down beside his wife. “He wanted to have sex,” a prosecutor would later tell a judge. “But she said no due to the fact he was intoxicated and she had recently given birth.”

Enraged, Barkza grabbed a kitchen knife and lunged at the mother of his two children. He stabbed her once in the chest before turning the blade on himself, again and again. By the time police arrived at the apartment, he was covered in blood and barely conscious. (Thankfully, his wife’s wounds were far less severe, requiring only a short hospital visit.)

Originally charged with attempted murder, Barkza pleaded guilty to aggravated assault and received a 26½-month prison sentence. Then came the real punishment: like hundreds of other landed immigrants convicted of serious crimes, the Afghanistan native was slapped with a deportation order. Canada, home since 2004, wanted him gone.

In theory, his removal should have been routine. According to the law, any non-citizen sentenced to more than two years cannot challenge his pending deportation at the Immigration and Refugee Board, paving the way for a supposedly swift ejection. But Barkza had one option left—a backdoor tactic that more and more foreign criminals are using to fight their deportations: he returned to court and appealed his sentence.

Last month, his wish was granted. Alberta’s highest court agreed to shave 2½ months off the original term, leaving Barkza with a final sentence of two years minus one day. That 24-hour distinction—the difference between two years, and two years less a day—was just enough to reinstate his appeal rights to the IRB, a process that will certainly delay, if not cancel, his flight out of Canada.

Since capturing their first majority in May, Stephen Harper’s Conservatives have unveiled a long list of headline-friendly immigration initiatives that target everything from human smugglers to citizenship fraudsters. At the heart of the crackdown is a pair of FBI-style “most-wanted” websites launched by the Canada Border Services Agency, urging the public to help track down dangerous immigrants on the run from deportation. So far, the mug shots have worked; more than a dozen war criminals and other high-risk felons have been arrested, including Satpal Singh Jhatu, a convicted killer who was supposed to be sent back to India seven years ago.

But while the feds have reason to boast—“Canada’s doors will not remain open to those who have broken the law and have endangered the safety of our citizens,” declared one press release—another story is quietly unfolding in courtrooms across the country. In case after case, judges are imposing lighter sentences on violent immigrants like Hamidullah Barkza because they are reluctant to quash their only real hope of remaining in Canada: a date with the IRB’s Immigration Appeal Division (IAD). In one controversial ruling, a South African national who was given 3½ years for savagely beating a man in Trenton, Ont., had his sentence trimmed by 18 months and one day so he could appeal his removal.

“I have some serious concerns with this,” says Sergio Karas, a prominent immigration lawyer in Toronto. “Parliament established that a non-citizen who is convicted of an offence and receives a sentence of two years or more should lose his right of appeal to the Immigration Appeal Division. Now the courts are saying: ‘Okay, Parliament wants these people to lose their appeal right, so we’ll just lower the sentence.’ How far are the courts prepared to go in bending those rules? And how far is the government prepared to push back?”

Not even the courts seem sure of the answer. While many provincial judges have followed the trend toward lighter sentences, Quebec’s highest court recently issued a landmark ruling on the issue, refusing to show leniency for three foreign-born criminals because “it would encourage courts to disregard the clear intent of Parliament.” But in August, the Supreme Court declined to review the case, leaving the matter very much unsettled.

“The same question has come up over and over: is this criminal courts stepping on immigration law?” says Alias Sanders, Barkza’s lawyer. “We now have different results in different parts of Canada. This is something on which we should have unanimity.”

James Bissett, the former executive director of Canada’s immigration service, says the law as written should be clear enough. “Violent crimes that put you in jail for more than two years are very serious, and deportation is the consequence,” he says. “Everybody is supposedly equal under the law, so why should landed immigrants get a break that citizens don’t? It is ridiculous.”

What to do with immigrants who become convicts instead of citizens has been a decades-long struggle for the feds. The debate reached a boiling point in 1994 after two infamous murders in Toronto: the shotgun slaying at a Just Desserts café, and the killing of a police constable. It turned out that suspects in both cases were born somewhere else, never applied for citizenship, and had previously been ordered deported because of criminal activity. Jean Chrétien’s Liberals responded to the backlash with legislation that made it easier to remove dangerous foreign offenders, and in 2002 the law was toughened to include the no-appeal clause.

The change was subtle but significant. An independent body, the Immigration Appeal Division considers cases on humanitarian and compassionate grounds, and has the power to overturn a person’s deportation if, for example, the applicant is his family’s only breadwinner or has lived in Canada most of his life. By eliminating that appeal for criminals sentenced to two or more years, Ottawa’s intention was clear. “They wanted all these bad apples extricated from Canada,” Karas says. “And quickly.”

But for judges, the amendment raised a novel question: should a person’s potential deportation be considered at sentencing?

The Ontario Court of Appeal was the first to weigh in. Donna Mason, a Jamaican who has lived in Toronto since the age of seven, was caught trying to smuggle cocaine back into Canada after a holiday. Prosecutors asked for a term of two to three years, but the court ruled in 2004 that “the risk of deportation can be a factor taken into consideration” and sentenced her to two years less a day.

In 2005, 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 appeal to the IAD was “a serious but unintended collateral effect of the penalty” that a citizen would not have to endure. “The matter of a single day, two years rather than two years less a day, is inconsequential in terms of denunciation, retribution and deterrence,” the court ruled. “But, in relation to the appellant’s immigration status and his personal safety, the difference of one day carries potentially enormous consequences.”

Similar rulings followed. Quoc Ai Mai, a Vietnamese national who imported 1,728 kilograms of marijuana from Ecuador, had his sentence cut by one day. So did Monir Leila, a Chilean-born heroin addict who pleaded guilty to possession of stolen property, and Suwalee Iamkhong, an HIV-positive stripper from Thailand who was convicted of criminal negligence causing bodily harm after infecting her husband.

The steepest reduction so far was granted to Dylan Lee Morgenrood, who came to Canada from South Africa as a 14-year-old and, nine years later, “committed a particularly vicious assault.” In cutting his sentence from 3½ years to two years less a day, the Ontario Court of Appeal ruled in May that Morgenrood has “a complete absence of any support” in his birth country and should be allowed to argue his case in front of the IAD.

That doesn’t mean, of course, that Morgenrood will succeed. As with all these files, the IAD still holds the final call when it comes to deportation. The decreased sentence simply ensures that offenders have a chance to argue their case—and remain in the country while the process slowly unfolds.

And unless the Supreme Court does decide to weigh in at some point, the IAD will hear from many more criminals who, according to Parliament, were not supposed to have that chance. People like Hamidullah Barkza.

“When you see a guy who had originally been charged with attempted murder who stabs his wife, you think: ‘Of course he should go,’ ” says Sanders, his lawyer. “The problem is that he had been a good father, a good husband, a good provider, and had no prior criminal record. What he did was absolutely out of character.”

Is that reason enough to let him in stay? “It shouldn’t be,” Bissett says. “The purpose of the law is to give protection and safety to Canadians, and if people come from another country and commit a serious offence, they should be removed, period.”


Why are judges giving immigrants who commit serious crimes a second chance?

  1. Mr. Friscolanti:

    Please correct the following sentence:

    ” So far, the mug shots have worked; more than a dozen war criminals and other high-risk felons have been arrested.”

    They may not be desirable neighbours, but they’re only “War Criminals” if they’ve been convicted.

    It may seem a small detail, but it’s one you, in the position you hold, must get right.

    Thank you.

      • At least you spelled it right. Points for that.

  2. I would like some clarification.  If these guys commit another crime, can they be deported?

  3. Seems to confirm the view that the court system is thwarting the will of the people as expressed by parliament. Makes it very clear that minimum sentences are absolutely necessary so unelected judges have only very narrow discretionary opportunity when sentencing.   

    The people want rid of scum. Judges must be reminded who it is that pays the piper. 

  4. “should a person’s potential deportation be considered at sentencing?” No, it should not.

    Many of the people whose cases are described in the article had been in the country long enough to have obtained their citizenship had they wanted it. They would then not have been in danger of deportation. So, just as they chose to commit their crimes, they also chose not to fully embrace Canada. Choices have consequences.

    I’ll concede the two years / less a day; 24 hrs is a razor-thin line to make such a difference and if the judge thinks the person is reformable then that’s a reasonable price. But significant reductions should not be made on the basis of whether a person may be deported. To do so brings justice into disrepute. It means citizens get stiffer penalties than immigrants, setting up a two-tier sentencing system (and giving citizens a new ground of appeal: systemic discrimination against citizens compared to non-citizens).

    And what about the victims? How do you think any of them feel upon finding out the person who has caused them harm has been given a lighter sentence in order to remain in the country? I know I’d feel betrayed by the system. It’s the kind of scenario that can lead to an uptick in vigilantism.

    Based on this article, there dos not seem to be a Charter argument for making these reductions. Without a clear and compelling reason to do so – i.e. because a law is in breach of the Charter – judges should NOT be thwarting the will of Parliament. And clearly, that is what they are doing.

    • If I am not mistaken, it does not matter if you are “in the country long enough to be granted citizenship.”  If you are not born in Canada and you commit a violent crime, you can be stripped of your citizenship and deported.  Citizenship is a privilege that you get to keep IF you are a law abiding person.    Why we would want to protect violent criminals and give them a safe haven in Canada, I have no idea.

      • The applicable section of the Immigration and Refugee Protection Act for the purposes of this article is:

        No appeal for inadmissibility
        64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
        Serious criminality
        (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

        (My bolding)

        Once you’re a citizen, you’re not subject to this Act and thus s. 64 is of no application. Or at least, that’s how I read it [I’m not a lawyer, so I may well be wrong].

  5. The Judges are over-stepping their authority…the sentence is what the sentence is and someone’s potential deportation status should have nothing to do with it.  Quite frankly, large Canadian cities have become overrun with immigrants and we should look at our immigration policies as a whole!  Canada is NOT Canada anymore!

  6. after reading this it seem as though there are criminals out there who do deserve to be deported.
    i could be wrong but in my opinion it looks like you are taking these individual cases and using them to your benefit without researching prior criminal convictions, you are basically challenging the authortative figures that govern our society. After all these judges reducing these sentences have been put there for a reason, these immigtants are humans to as well as the judges, people make
    mistakes, now im not saying its ok to commit crimes, im not for that, but as a canadian show some compassion and dont be so quick to judge, especially if you dont know anything about that person or their case and maybe you should look at why they are imposing these sentence reductions because its not all primarily based on the right to argue their case infront of the iad. in mr morgenroods case this individual for example could have no priors and being the severity of the case yes a few years behind bars sounds reasonable but persay if this individual does not have a lengthy criminal record that would not be fair to him according to the criminal code the sentence being imposed should jbe tailored to that individual, and if these immigrants are serving the sentence being imposed why should they face double jeopardy, do their time and while during incarceration do programs or treatment for their alleged crimes. im a strong believer in people deserving a second chance and to my understanding the CBSA has a no tolerance policy for individuals who have been given that second chance, any
    convictions after a removal order has been placed and a stay order issued these individuals are placed into custody and removed from the country.

    !!! Be Alert !!! Danger, Scam Rent !!!Dylan Lee Morgenrood (introduce himself Dylan Morgenrood and misspelled his name -q- instead of -g- Dylan Morqenrood, date of birth: July 13, 1985 ) and his companion Nicole Nicholson (date of birth: July 27, 1989). They do not pay rent, multiple court cases, criminal charge in case of serious assault, robbery and breach of undertaking.!!! Do not rent your property to these people !!!

    • Figures…guy is a scumbag.

  8. Dylan Lee Morgenrood is a menace to society and a violent gangsta wanna-be. During the filming of my first feature film, one of the lead actors didn’t show up to set. Later that day we learned that this actor was in the hospital in a coma because Dylan Lee Morgenrood, with no apparent reason other than he was stoned out of his mind, had head stomped him as he walked home from his job. One witness described it as it was like Mr Morgenood was trying to stomp open a watermelon with both feet… This bastard has gone on to do nothing but continue on his criminal path, including weapon offences, while my film had to be shelved and my actor friend after more than a month in a coma still has issues from his injuries. Morgenrood’s wealthy parents have seen to some fancy lawyers getting serious money to keep him from paying his societal debts in full, but this guy is going to seriously harm or kill someone sooner or later. I’d rather it not be a fellow Canadian. Get this violent douche out of my country or lock him up for a reasonable amount of time.

  9. Dylan Morganrood needs to get out of our country. He is not welcome here in Quinte West and I hope he never comes back. No Canadian can feel safe when he is loose out ther.. God forbid you might look at him the wrong way and get your head viciously stomped in by this cowardly thug. I really don’t know why on earth the judge is more concerned about his support network in his home country than they are about the victim of his vicious attack.

    This man has been arrested since this article was written with illegal guns in his possession. Does he need to shoot someone before he is made to leave? Canadian’s should be protected first and foremost.

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