Florida woman granted asylum in Canada

[bush_cheney2004]

Rue, she's not a refugee. She was given protected persons status for facing cruel and unusual punishment back home. If you're going to get technical with the legal status, you might want to use the right one.

She is a convicted sex offender and fugitive.

[overthere]

The specific activities she was charged and convicted for are not a crime here. Since the crime is explicitly about age, saying "age of consent is just different" is silly.

Yes, they most certainly are a crime here: it is the crime of sexual assault to have intercourse with a minor in Canada. Same as Florida and every other jurisdiction. Ms Harvey offered no defence at her trial and did not testify. The prosecution presented- among other evidence- her DNA on a used condom found in the boys room. She did the crime- it's the time that was troublesome.

What I wonder at is that the USA pioneered the whole defence of cruel and unusual punishment as a strong avenue of appeal for convicted felons. Why hasn't she appealed the sentence? USA is the land of endless due process for white middle class people who (rarely) get railroaded with a bizarre sentence. By fleeing she now has charges pending that won't go away even if her original sentence is reduced.

[guyser]

Yes, they most certainly are a crime here: it is the crime of sexual assault to have intercourse with a minor in Canada. Same as Florida and every other jurisdiction.

Nope, she would not even be charged in Canada

[On Guard for Thee]

Yes, they most certainly are a crime here: it is the crime of sexual assault to have intercourse with a minor in Canada. Same as Florida and every other jurisdiction. Ms Harvey offered no defence at her trial and did not testify. The prosecution presented- among other evidence- her DNA on a used condom found in the boys room. She did the crime- it's the time that was troublesome.

What I wonder at is that the USA pioneered the whole defence of cruel and unusual punishment as a strong avenue of appeal for convicted felons. Why hasn't she appealed the sentence? USA is the land of endless due process for white middle class people who (rarely) get railroaded with a bizarre sentence. By fleeing she now has charges pending that won't go away even if her original sentence is reduced.

I don't know how many times this has to be repeated before it sinks into peoiples heads, 16 years of age in Canada means you are NOT a minor any longer with regard to sexual activity as long as the other person is not a so called "person of authority". Sure she could have stayed and fought in the US, and at the end of the day there would be a rich lawyer and a poor woman, who would still end up in jail.

[Peter F]

Dang. I had a long a brilliant reply all typed up for Rue. but I lost it by clicking in the wrong place.

But I shall respond to Overthere's post above since it addresses much of the same issues.

Ms. Harvey's Crime: She had sex with a minor. Illegal both in Florida and Canada. Apparently that is the entire extent of her crime. There was nothing else to it. No beatings or other violence. No manipulation to commit crimes. No profit through prostitution, drug running, robbery. No forceable confinement. Nor any other known extenuating circumstance. She had a fling with a minor.

She offered no defence and did not testify. The State went to town and proved beyond all doubt that she had sex with a 16year old minor. See? we even have the condom proving she had sex with the boy. Not one peep though about all the abuse she subjected the boy. Maybe there was no need. Maybe there was no abuse.

Such a fling in Canada would get a few tut-tuts from the church ladies, and no doubt the boys parents would be grounding the lad. But there'd be no cops, lawyers or courts involved because the minor in this case and these circumstances was a 16 year old male.

Rue suggests that by allowing this woman asylum in Canada we are making this country a haven for sexual offenders. No we are not...or actually we are not changing anything because some adult women do in fact have sex with 16 year old males in this country from time to time. And its generally no big

whup unless there are other circumstances and/or manipulation involved. Canada already is a haven for sexual intercourse with 16 year olds.

Granting Ms. Harvey asylum doesn't change a damn thing.

As for appeals, according to the Federal Court ruling ( http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62421/index.do ) she made appeals;

Her motion for reconsideration of the sentence was dismissed; Her appeal to the Florida Court of Appeal was dismissed; Her appeal to the Florida

Supreme Court was dismissed. The refugee board (again based on what is revealed in the Federal Court ruling linked) reasonably found that her

chance of being granted clemency by the Governor or her case being heard by the US Supreme court was unlikely.

I quote para 73 of the FC decision:

[73] After weighing the evidence before it, the Board concluded that “the preponderance of the evidence is that all realistic mechanisms for redress had been exhausted” by Ms. Harvey in the United States. Considering the Board’s decision as a whole in the context of the underlying record, and having regard to the deferential standard of review applicable to such a finding, I cannot say that the Board’s conclusion on this point is unreasonable.

But yes...If you can't do the time then don't do the crime. As Cybercoma said a page or two ago, if the sentence had have been 2 or 3 years this claim for

protected status would have been tossed and rightly so.

But instead she was sentenced to 30 years.

And that is what refugee boards are for.

[Peter F]

Rue claims that the refugee board is fundamentally wrong in its decision to grant asylum because refugee claims need be based on religious political or racial ground.

Section 97 of the immigration and refugee protection act (which Ms. Harvey's claim was based) says nothing at all about race, religion or political activities. Section 97 allows protected status to persons who would be subject to either torture, loss of life or cruel or unusual treatment or punishment if sent back to where they came from.

http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-37.html#h-50

Personally, I think those are pretty good grounds to grant protected status.

Edited May 22, 2014 by Peter F

[On Guard for Thee]

Well said Peter F, thanks for doing the research. Of course it says nothing about racial, political, or religion, and Thank God, pardon the expression. Perhaps your post will go some ways to allay these fears of plane loads of convicted criminals heading for our borders.

[Bob Macadoo]

Thank-you for the link, I couldn't find the order.

On November 29, 2009, prior to her appeal being heard by the Florida Supreme Court, Ms. Harvey fled to Canada. On April 7, 2011, she was arrested by the Royal Canadian Mounted Police, whereupon she made a refugee claim.

As well she appealed her case, it would seem, based on a perceived bias by the trial judge and juror. This was rejected by the IRB as well as the appellate courts, maybe she should've tried the cruel angle then.

In any case I've never argued I agree with the sentence, only that Florida is not violating any common standards by imposing what they have legislated as just. You don't like those laws, pay lobbyists there to help change them. Diplomatic reciprocity is a bitch sometimes......from someone who likes to visit that state.

[cybercoma]

The same way Canadian law justifies the age of consent for anal sex at 18 years, with a maximum penalty of ten years imprisonment. But I don't have to justify what the legislature and courts of Florida have decided to do, anymore than you have to justify laughably lenient sentences in Canada for murder or manslaughter. She turned down a plea bargain and jumped bail, and is now a fugitive from the law. Add that to her bill.

I'm talking about a specific case here. I don't need to justify someone getting 10 years for having consensual anal sex with someone 1 year below the age of consent because you've provided no case study of this ever happening.

Before us in this thread is an instance where a 47 year old woman had a consensual relationship with a 16 year old, who would have legally been able to give consent in the vast majority of US states. Florida gave her 30 years in prison, which would likely be the rest of her life in jail. That happened. There's details in this case available to the public. So please contribute to this thread; go ahead and make the argument that this sentence in this trial is justified in any way. Laws are not simply justified by virtue of existing. Otherwise the Nuremberg Defence would have been completely valid in the Nazi Trials. So go on and defend your position and explain to everyone how putting someone behind bars for the rest of their life for having sex with someone who could consent in 30 states, but not this state, is even remotely justifiable.

[cybercoma]

Yes, they most certainly are a crime here: it is the crime of sexual assault to have intercourse with a minor in Canada.

Again, the specific circumstance of this case were not illegal in this country. A 16 year old in Canada can consent to a sexual relationship with a 47 year old who is not in a position of authority or trust over them (e.g., teacher, police officer, priest, doctor, coach).

Also, she would not have been charged with sexual assault s.271. The charge, if the victim was not of the age of consent in Canada, is sexual interference CCC s.151 or if the accused is in a position of trust it is sexual exploitation s.153.

That's all moot, however, as the particular circumstances in this case were entirely legal here. He was over the age of consent and she was not in a position of trust, so it was neither interference nor exploitation. It wasn't even remotely close to being assault.

[cybercoma]

Rue claims that the refugee board is fundamentally wrong in its decision to grant asylum because refugee claims need be based on religious political or racial ground.

Section 97 of the immigration and refugee protection act (which Ms. Harvey's claim was based) says nothing at all about race, religion or political activities. Section 97 allows protected status to persons who would be subject to either torture, loss of life or cruel or unusual treatment or punishment if sent back to where they came from.

http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-37.html#h-50

Personally, I think those are pretty good grounds to grant protected status.

Protected Status is different from Refugee.

[Peter F]

...

In any case I've never argued I agree with the sentence, only that Florida is not violating any common standards by imposing what they have legislated as just. You don't like those laws, pay lobbyists there to help change them. Diplomatic reciprocity is a bitch sometimes......from someone who likes to visit that state.

Few have argued that the sentence was appropriate - except maybe BC2004, and i'm not sure he did either. But thats the whole point isn't it? The sentence was well outside the norm, perhaps not Florida norm. It maybe that a thirty year sentence is the norm in Florida for what Ms. Harvey did.

Too bad for Florida. Canada also has laws that need be respected - in Canada anyways. One of them being the immigration and refugee act.

By that act, the Florida sentence reached into the realm of cruel and unusual punishment.

Florida can enact whatever laws it pleases them to enact but by doing so does not mean Canada must change its own laws to comply.

Edited May 22, 2014 by Peter F

[On Guard for Thee]

She is a convicted sex offender and fugitive.

Only under the laughable laws of the state of florida. Oh and Saudi Arabia.

Edited May 23, 2014 by On Guard for Thee

[bush_cheney2004]

I'm talking about a specific case here. I don't need to justify someone getting 10 years for having consensual anal sex with someone 1 year below the age of consent because you've provided no case study of this ever happening.

That's because you can't when faced with identical age of consent and long sentences for anal sex in Canada. Lack of enforcement is not an excuse or defense. Flip-flopping back and forth between the two aspects of this case does not a solid argument make. Ultimately, convicted sex offenders and fugitives from the law are welcomed in Canada given the right circumstances.

As for case law, it's somewhere in this LGBT rights wiki entry:

Before 1859, Canada relied on British law to prosecute sodomy. In 1859, Canada repatriated its buggery law in the Consolidated Statutes of Canada as an offence punishable by death. Buggery remained punishable by death until 1869. A broader law targeting all homosexual male sexual activity ("gross indecency") was passed in 1892, as part of a larger update to the criminal law. Changes to the criminal code in 1948 and 1961 were used to brand gay men as "criminal sexual psychopaths" and "dangerous sexual offenders." These labels provided for indeterminate prison sentences. Most famously, George Klippert, a homosexual, was labelled a dangerous sexual offender and sentenced to life in prison, a sentence confirmed by the Supreme Court of Canada. He was released in 1971.

Canadian law now permits anal sex by consenting parties above the age of 18, provided no more than two people are present.^[16] The bill repealing Canada's sodomy laws was the Criminal Law Amendment Act, 1968-69 (Bill C-150), which received royal assent on June 27, 1969. The bill had been introduced in the House of Commons by Pierre Trudeau,^[17] who famously stated that "there's no place for the state in the bedrooms of the nation".^[18]In the 1995 Court of Appeal for Ontario case R. v. M. (C.), the judges ruled that the relevant section (section 159) of the Criminal Code of Canada violated section 15 of the Charter of Rights and Freedoms when one or both of the partners are 16 to 18 years of age;^[19] this has not been tried in court again.

http://en.wikipedia.org/wiki/Sodomy_law#Canada

[On Guard for Thee]

That's because you can't when faced with identical age of consent and long sentences for anal sex in Canada. Lack of enforcement is not an excuse or defense. Flip-flopping back and forth between the two aspects of this case does not a solid argument make. Ultimately, convicted sex offenders and fugitives from the law are welcomed in Canada given the right circumstances.

As for case law, it's somewhere in this LGBT rights wiki entry:

Before 1859, Canada relied on British law to prosecute sodomy. In 1859, Canada repatriated its buggery law in the Consolidated Statutes of Canada as an offence punishable by death. Buggery remained punishable by death until 1869. A broader law targeting all homosexual male sexual activity ("gross indecency") was passed in 1892, as part of a larger update to the criminal law. Changes to the criminal code in 1948 and 1961 were used to brand gay men as "criminal sexual psychopaths" and "dangerous sexual offenders." These labels provided for indeterminate prison sentences. Most famously, George Klippert, a homosexual, was labelled a dangerous sexual offender and sentenced to life in prison, a sentence confirmed by the Supreme Court of Canada. He was released in 1971.

Canadian law now permits anal sex by consenting parties above the age of 18, provided no more than two people are present.^[16] The bill repealing Canada's sodomy laws was the Criminal Law Amendment Act, 1968-69 (Bill C-150), which received royal assent on June 27, 1969. The bill had been introduced in the House of Commons by Pierre Trudeau,^[17] who famously stated that "there's no place for the state in the bedrooms of the nation".^[18]In the 1995 Court of Appeal for Ontario case R. v. M. (C.), the judges ruled that the relevant section (section 159) of the Criminal Code of Canada violated section 15 of the Charter of Rights and Freedoms when one or both of the partners are 16 to 18 years of age;^[19] this has not been tried in court again.

http://en.wikipedia.org/wiki/Sodomy_law#Canada

We welcome American's as well as other nationalities in Canada, as long as they aren't criminals under Canadian law.

[Guest]

Canadian law now permits anal sex by consenting parties above the age of 18, provided no more than two people are present.^[16] The bill repealing Canada's sodomy laws was the Criminal Law Amendment Act, 1968-69 (Bill C-150), which received royal assent on June 27, 1969. The bill had been introduced in the House of Commons by Pierre Trudeau,^[17] who famously stated that "there's no place for the state in the bedrooms of the nation".^[18]In the 1995 Court of Appeal for Ontario case R. v. M. (C.), the judges ruled that the relevant section (section 159) of the Criminal Code of Canada violated section 15 of the Charter of Rights and Freedoms when one or both of the partners are 16 to 18 years of age;^[19] this has not been tried in court again.

http://en.wikipedia.org/wiki/Sodomy_law#Canada

As long as there are only two people present? That's hilarious. I wonder what the penalty is for being the gooseberry.

[Bob Macadoo]

Few have argued that the sentence was appropriate - except maybe BC2004, and i'm not sure he did either. But thats the whole point isn't it? The sentence was well outside the norm, perhaps not Florida norm. It maybe that a thirty year sentence is the norm in Florida for what Ms. Harvey did.

Too bad for Florida. Canada also has laws that need be respected - in Canada anyways. One of them being the immigration and refugee act.

By that act, the Florida sentence reached into the realm of cruel and unusual punishment.

Florida can enact whatever laws it pleases them to enact but by doing so does not mean Canada must change its own laws to comply.

No one is asking Canada to change its laws, only to respect and honour the diplomatic ties these two countries maintain. The sentence in my guess wouldn't receive the reaction we've given it, even in those states with statutes similar to ours. Which also begs the question whywait until caught if you believe in this cause, why not declare for protected status as soon as you cross the border? Again my guess is she thought we'd send her back and it wasn't so against the norm.

[cybercoma]

That's because you can't when faced with identical age of consent and long sentences for anal sex in Canada.

It's because 1) it's an entirely different law, and 2) even if it were comparable, you still haven't shown an application of that law in practice that comes even remotely close to the sentence Florida actually handed out. Edited May 23, 2014 by cybercoma

[On Guard for Thee]

No one is asking Canada to change its laws, only to respect and honour the diplomatic ties these two countries maintain. The sentence in my guess wouldn't receive the reaction we've given it, even in those states with statutes similar to ours. Which also begs the question whywait until caught if you believe in this cause, why not declare for protected status as soon as you cross the border? Again my guess is she thought we'd send her back and it wasn't so against the norm.

And don't even bother asking us to change our laws. Least not to parallell American laws. Otherwise we'd be spending billions on prisons and sending it to Cheney. We're not quite that stupid.

[Peter F]

No one is asking Canada to change its laws, only to respect and honour the diplomatic ties these two countries maintain. The sentence in my guess wouldn't receive the reaction we've given it, even in those states with statutes similar to ours. Which also begs the question whywait until caught if you believe in this cause, why not declare for protected status as soon as you cross the border? Again my guess is she thought we'd send her back and it wasn't so against the norm.

Sending claimants back is indeed the norm. In this case the board agreed that she had a point and shouldn't be sent back. I doubt very much that Ms. Harvey's purpose was to make a political statement.

Edited May 23, 2014 by Peter F

[monty16]

We always prefer to take an humanitarian position but I question whether it's worth the cost when it comes to Americans. The political and economic blackmail we suffer from rattling their cage just isn't worth it anymore. They have created their own problems within their society and it's up to them to try to fix it. They express little concern over doing that. What can anyone think when re read of them bringing back the electric chair to kill their people?

[cybercoma]

We always prefer to take an humanitarian position but I question whether it's worth the cost when it comes to Americans. The political and economic blackmail we suffer from rattling their cage just isn't worth it anymore. They have created their own problems within their society and it's up to them to try to fix it. They express little concern over doing that. What can anyone think when re read of them bringing back the electric chair to kill their people?

The criminal law in this case is an issue with a state, so I'm not sure that it would affect federal diplomatic ties. "Snowbirds" in Fla might get an uncomfortable reception though, but somehow I doubt it's much of an issue. Edited May 23, 2014 by cybercoma

[monty16]

Yeah, yeah, I know that none of the states are part of the US when it's inconvenient to be so. It's like the US isn't bringing back the electric chair to kill their own people because it's a state doing it. What comes next, Alabama bombing Venezuela?

[cybercoma]

What are you talking about? This thread is about criminal law, which is in the jurisdiction of each state in the US unlike Canada. Our criminal law is federal. It has nothing to do with moving goalposts or convenience. The US, that is federal government, doesn't dictate criminal law to the states. The fed has its own statutes.

[Peter F]

We always prefer to take an humanitarian position but I question whether it's worth the cost when it comes to Americans. The political and economic blackmail we suffer from rattling their cage just isn't worth it anymore. They have created their own problems within their society and it's up to them to try to fix it. They express little concern over doing that. What can anyone think when re read of them bringing back the electric chair to kill their people?

Of course Americans are worth it. Everybody's worth it. Sure its up to them to fix their society (assuming they think it needs fixing) but wether they 'fix' themselves or not has nothing to do with granting Protected status to folks who lawfully should get it.

And Canadians spend an inordinate amount of time killing each other too.