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.”

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