Florida woman granted asylum in Canada

[bush_cheney2004]

...Think about it: if "cruel and Unusual punishment" was a criteria on its own then Canada would to accept every murderer fleeing the death penalty. There is no way that the original framers of the laws intended it to be used in that way. And there is no way that Canadians would accept this interpretation today.

Agreed....Canada's own government appealed the claim. There is no way that Canadians would accept a large influx of other convicted nationals just because of "cruel and unusual" punishment(s).

[monty16]

Read my post. I said "beliefs or ethnic identity".

This women is neither displaced or persecuted. The laws in the US apply to everyone regardless of their beliefs or identity.

That's definitely not true. It's very easy to find cases of discrimination against blacks and Hispanics.

[On Guard for Thee]

It is an arbitrary line. Adults having sex with children is illegal in Canada. Different jurisdictions drawing the line in different places do not make it any less a crime.

So Canada should just hold this woman until the courts reduce the sentence to something reasonable? I could live with that. As long as she goes back.

Nobody is holding her. Since the courts have upheld the previous decision of the IRB, she can now become a permanent resident like any other foreigner can, through a process.

[TimG]

Nobody is holding her. Since the courts have upheld the previous decision of the IRB, she can now become a permanent resident like any other foreigner can, through a process.

Well - we will see. The government should at least change the law to explicitly exclude cases like this just like they have already added an exclusion for claims based on inadequate healthcare.

[On Guard for Thee]

Read my post. I said "beliefs or ethnic identity".

This women is neither displaced or persecuted. The laws in the US apply to everyone regardless of their beliefs or identity.

Nor is she a criminal under Canadian law. And the sentence of 30 years is deemed cruel and unusual. Those two items are the basis of the IRB's original decision and it's conformation by the courts. They have to both exist for this case to stand.

[On Guard for Thee]

Well - we will see. The government should at least change the law to explicitly exclude cases like this just like they have already added an exclusion for claims based on inadequate healthcare.

I will agree it's not the "prettiest" scenario one can imagine, But from what I read it's her and husband and son who now live here so they must have worked through it all. It's more of a family matter than a legal one IMO.

[Rue]

Peter it is still possible this goes to the Supreme Court of Canada. Depends how far the current government wants to push it and how much pressure they get from the US and whether the US states and/or federal government bring into question our criminal extradition treaties.

I do not think this is over yet.

[Rue]

There is no doubt what On Guard said but I do not think this is over. The federal government may be placed in a very tough position of the State of Florida undoes its criminal extradition or other extradition laws with us. If we do not honour their laws they may not want to honour ours and this could have implications just with criminal law but other areas of law. I think it is of important enough consequence to go to the Supreme Court.

If not I can see Harper changing the law to close this interpretation. It opens the way now for any US criminal to come to Canada and use the refugee system to avoid their sentences. Because of the geographic proximity to Canada this is bound to have serious implications not to mention if I were the US states,I would start dumping all my criminals in Canada.

I hear Britain did it once with Australia. We seem to be repeating that process.

[monty16]

There is no doubt what On Guard said but I do not think this is over. The federal government may be placed in a very tough position of the State of Florida undoes its criminal extradition or other extradition laws with us. If we do not honour their laws they may not want to honour ours and this could have implications just with criminal law but other areas of law. I think it is of important enough consequence to go to the Supreme Court.

If not I can see Harper changing the law to close this interpretation. It opens the way now for any US criminal to come to Canada and use the refugee system to avoid their sentences. Because of the geographic proximity to Canada this is bound to have serious implications not to mention if I were the US states,I would start dumping all my criminals in Canada.

I hear Britain did it once with Australia. We seem to be repeating that process.

It might be fun to imagine a one to one with Florida but it's just not going to happen. For instance, what Canadian law would Florida choose to not recognize and cause Canada to respond in kind? And that's why this kind of silly gamesmanship doesn't exist.

[Argus]

The problem is these cases create precedents. It really makes no difference that you think this woman should be let in - what matters are all of the similar cases that would then be allowed because of this precedent. That is why Rue and others argue that this ruling is wrong.

You think there are going to be a lot of people who commit very minor crimes who are sentenced to 30 years in prison?

[Argus]

There is no doubt what On Guard said but I do not think this is over. The federal government may be placed in a very tough position of the State of Florida undoes its criminal extradition or other extradition laws with us. If we do not honour

Florida is not about to make a big deal out of this and alienate Canadians who pump billions into its economy every year.

[Argus]

Well - we will see. The government should at least change the law to explicitly exclude cases like this just like they have already added an exclusion for claims based on inadequate healthcare.

Cases like what? Cases where Americans are given absurdly cruel sentences for minor crimes?

[Argus]

Agreed....Canada's own government appealed the claim. There is no way that Canadians would accept a large influx of other convicted nationals just because of "cruel and unusual" punishment(s).

I don't think "Canada's own government" represents the will of the people in this one.

[Argus]

Tink about it: if "cruel and Unusual punishment" was a criteria on its own then Canada would to accept every murderer fleeing the death penalty.

Canadian courts have never ruled the death penalty (for murder) to be cruel and unusual punishment. There is nothing against the Charter which stops parliament from bringing it back.

[Argus]

It is an arbitrary line. Adults having sex with children is illegal in Canada. Different jurisdictions drawing the line in different places do not make it any less a crime.

So if Canada had an extradition treaty with a Muslim country, and that country had sentenced a woman to death for adultery, you'd be all for us sending her back?

[TimG]

So if Canada had an extradition treaty with a Muslim country, and that country had sentenced a woman to death for adultery, you'd be all for us sending her back?

Well, If Canada actually signed an extradition treaty with a Muslim country it would likely explicitly exclude people accused of crimes like that so your question is irrelevant. We are talking about the US which generally has a much harsher justice system and Canada has to simply accept the US judgment on sentences unless you want Canada to become a haven for US criminals. Edited May 26, 2014 by TimG

[TimG]

Canadian courts have never ruled the death penalty (for murder) to be cruel and unusual punishment. There is nothing against the Charter which stops parliament from bringing it back.

Actually, if it was brought back it would likely be struck down by the SCC today. The court today is populated with academics that have grown up in a different intellectual environment which means you cannot assume that decisions made in the past would hold up if they were brought before the court today.

[On Guard for Thee]

Actually, if it was brought back it would likely be struck down by the SCC today. The court today is populated with academics that have grown up in a different intellectual environment which means you cannot assume that decisions made in the past would hold up if they were brought before the court today.

Of course it would be, just like it was nearly 40 years ago by all those academics.

[cybercoma]

Cyber at this point you are asking me questions you can easily find out for yourself. Go to the government web-site.

When the refugee board makes a decision, it is appealed to the Refugee Appeal Division (RAD) then Federal Court of Canada and then Supreme Court of Canada.

Any court lower than the Supreme Court of Canada is a lower court.

The Federal Court of Canada hears appeals from either federal tribunals that have no appeal division, or the decisions of the appeal division of federal tribunals when they have an appeal division.

Just go on the Ministry web-site and read the appeal process.

My point is that the case sets a precedent for refugee claimants only and on that point the decision was that 30 years in prison for consensual sex that did not involve coercion, a person in a position of power, nor assault, is a cruel and unusual punishment. It has nothing to do with the law simply being more strict that ours. It has nothing very little to do with the age being different than ours. It has to do with sentencing so severe as to violate any rational sense. Edited May 26, 2014 by cybercoma

[cybercoma]

If there was sexual exploitation in Ms.Harvey's instance, why was this not addressed by the RB?

Because the legal definition of sexual exploitation is very specific in the Criminal Code of Canada. It's when a person in a position of trust coerces sex from a minor. The relevant code, s. 153:

Sexual exploitation

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

( for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

This teen wasn't dependent on her nor was she in a position of trust or authority over him. Therefore, there can be no exploitation.

There is absolutely no evidence of this in Harvey's case.

[cybercoma]

You don't seem to understand the nature of precedent. It is like a virus that ever expands in scope. You want to believe that it would only apply to the exact same conditions but it won't - it will be applied in increasingly broader terms until it is used to grant refugee status to murders fleeing capital punishment.

It has never happened yet and there's nothing indicating that it would be. This is a poor argument anyway. You're essentially saying, "first a woman is having consensual sex with someone who can legally consent in 30 states and canada, next thing you know we're granting protected status to Charles Manson." I don't need to disprove your foolish suppositions.

[TimG]

It has never happened yet and there's nothing indicating that it would be.

So show me where in the law Charles Manson would prohibited given your interpretation of the law? If there is not a clause in the law that prohibits Manson then you have no basis for your claim. The law is what is written - not some BS you make up based on whether you consider the claimant to be sympathetic.

I don't need to disprove your foolish suppositions.

IOW, you have no counter argument so you just wave your hands and claim it can't be true. Sorry - it does not work that way. If the law is re-interpreted to include a class of individuals the scope of individuals covered will expand. The only way to stop this expansion of scope is to reject the re-interpretation of the law and to stick with its original intent: to provide a means for genuine refugees to settle in Canada. Edited May 26, 2014 by TimG

[cybercoma]

So show me where in the law Charles Manson would prohibited given your interpretation of the law? If there is not a clause in the law that prohibits Manson then you have no basis for your claim. The law is what is written - not some BS you make up based on whether you consider the claimant to be sympathetic.

I'll get back to you when you learn more about how the law works. I don't have a counter argument for you because the example you gave is extremely stupid. You're comparing a minor offence to something like Paul Bernardo. There is no other word for that than stupid. Harvey's case isn't even remotely related and cannot be used as a precedent for that. Edited May 26, 2014 by cybercoma

[TimG]

I'll get back to you when you learn more about how the law works.

I suggest you learn how the law works. Once a precedent has been set and there is nothing in the law that prevents its scope from being expanded then lawyers will argue that it should be expanded further to cover their client. This will mean a few less deserving criminals will be allowed to stay which will then allow lawyers to argue for further expansion until we see murders getting refugee status all because naive fools don't understand that not all injustice can be corrected and sometimes you just have to live with it.

IOW - no matter how many times you claim otherwise you ARE advocating that murders be given refugee status because that is the inevitable outcome if this ruling is allowed to stand. The only way to prevent this would to be add something into the law that clearly limits how far this kind of protection can be extended but that requires parliamentary action - something which you don't seem to think is necessary as you are cheering the dubious "wisdom" of this ruling.

Edited May 26, 2014 by TimG

[Bonam]

I find it somewhat humorous reading this thread, while knowing that if the genders of the "offender" and the "victim" were reversed, we'd be having almost the exact same discussion but backwards, with the same posters taking their opposite positions. Of course no one would admit it now but it seems obvious given the knowledge of the posters here.

All that being said... I would comment that a prison sentence is not "cruel and unusual" punishment, regardless of the length of the sentence. It may be inappropriate punishment, overly severe punishment, and most certainly is in this case, but cruel and unusual? That refers to barbaric practices of physically maiming people, extreme corporal punishment, executing people in particularly painful ways, etc. Cruel and unusual punishment is not a matter of whether the punishment is appropriate to a crime... clearly 30 years is acceptable for sufficiently severe crimes. Cruel and unusual is a characteristic of the punishment itself, not its level of appropriateness for a particular crime.

Still, I am all for Canada intervening in such a miscarriage of justice, I just think it shouldn't have been based on the "cruel and unusual punishment" clause.