Florida woman granted asylum in Canada

[Rue]

That would be para 22 and 23 of the Federal Court review (the first ruling).

(underlining mine)

I see that my statement of "All the way down to sex with 5 year olds." was an addition of memory. There is no basis for that statement to be made.

No prob Peter and thanks for pasting it out. So as you can see, the no equivalent crime was not dealt with per se but under the Extradition Treaty something they were not considering she could not be deported.

Back to this determining it was 15 times too long, this is here i think its dead wrong. How do we know that until she exhausted the Amendment 8 argument, the very same criteria we can argue under our Charter to question the length of sentence. What made them think she would lose an Amendment 8 argument to lower the sentence?

That's one of my major issues. I think they jumped the gun. What is more incredible is the standard they would have used to determine the length of the sentence is no different then ours. So you make sense out of that for me.

Look Peter many of my arguements were theoretical in regards to our own sex offender laws being in need of change. In specific reference to the Harvey case, the above is my legal concern. In specific regard to the Extradition Treaty, it is what it is. That exemption from extradition where there is no equivalent crime is what it is. Both countries wanted it not just Canada.

Now in regards to the Harvey case can youc heck whether Cyber will reimburse the state for Harvey's expenses to date he seems to think they are no problem.

Not to be a stickler but a criminal prosecutor did not represent Ms. Harvey, a lawyer paid by the government of Canada under legal aid did.

Now I am glad to know Cyber, Ghost, Guyser et al want to assure we employ lawyers on the state budget. I know how much they care about my profession and paying such people. Lol.

[Rue]

Her offence wasn't punishable in Canada though. Did you miss that point over and over again?

Not at all relevant to what I explained to Peter and once again you miss the point over and over again. Lol.

Cyber at least read what I said. Its precisely because her offence was not punishable in Canada she can't be deported as I explained.

[cybercoma]

Not at all relevant to what I explained to Peter and once again you miss the point over and over again. Lol.

Cyber at least read what I said. Its precisely because her offence was not punishable in Canada she can't be deported as I explained.

What do you mean it's not relevant? Article 2 requires that the offence is punishable in both countries. The offence wasn't punishable in Canada; therefore, Article 2 does not apply. Or were you just posting it to decorate your post?

[Rue]

He's not a lawyer, but he plays one on the internet!

Lol you want to join in the chorus? Here let me try say it in not so complicated words for you. Since the crime she committed in Canada is not considered a crime in Canada she can not be deported under the Extradition Treaty. So when Cyber stated her crime was not punishable in Canada it was not the issue I was arguing and is not even what Peter was asking.

By chirping in with the little insult to me being a lawyer you showed like Cyber you missed the point only you compound your error by trying to get snippy and personal.

Peter rightfully asked me a question why the RCMP would take her in for questioning if they can't deport her.

I explained they can still take her into questioning to ascertain her immigration status. They would know from Florida police she had no student visa or working visa and therefore would be in Canada. Under the Immigration Laws they are allowed to detain her and ask what her intent is, i.e., how long do you intend to stay, how much money do you have, do you plan to return to the US on your own avail?

That is why in their detention she had to say I am applying for refugee status, otherwise while they could not deport her they could detain her under Immigration Laws.

You might instead of trying to get personal with me and insult my profession understand when I come on this board I speak with courtesy to people who do not understand the law. I understand how confusing it is to try keep up with all the overlapping laws.

If you want to get snippy and ridicule me for understanding the law and accuse me of not being a lawyer move on. Don't make me the personal issue. Either discuss the law or move on.

[Rue]

What do you mean it's not relevant? Article 2 requires that the offence is punishable in both countries. The offence wasn't punishable in Canada; therefore, Article 2 does not apply. Or were you just posting it to decorate your post?

Good Lord. Its painful. Article 2 says as I explained, if the law is not punishable in both countries, i.e, if there is no equivalent crime in Canada as there is in Florida, she can NOT be extradited, i.e. deported.

You are arguing with yourself.

Edited June 3, 2014 by Rue

[Rue]

erratum-obviously in response to Squid I made a typo and stated the crime she committed in in Canada was not a crime in Canada. I meant the crime she committed in the US was not a crime in Canada. I thought I better clarify that typo given the need to argue everything I write even when I myself am not even raising an argument.

[bush_cheney2004]

erratum-obviously in response to Squid I made a typo and stated the crime she committed in in Canada was not a crime in Canada. I meant the crime she committed in the US was not a crime in Canada. I thought I better clarify that typo given the need to argue everything I write even when I myself am not even raising an argument.

Clarification noted, but we don't know exactly what the sex offender did with the minor on multiple occasions. If it included anal sex, then it was a crime in Canada.

[cybercoma]

Clarification noted, but we don't know exactly what the sex offender did with the minor on multiple occasions. If it included anal sex, then it was a crime in Canada.

You know the court considered her asylum against what would be a reasonable punishment if she had broken the age of consent laws in Canada, other US states, and internationally, right?

You keep bringing up the stupid anal sex law, but have yet to provide a single example of its use. I explained some 500 posts ago the only instances where I've seen that law used and every time it involved sexual assault, incest, or sexual exploitation of some kind. It was an additional charge that's often dropped at trial.

Regardless, let's say it is used. Go head and show us a case comparable to Harvey's conviction. Show us this law used in practice any time in the last 10 years to sentence someone for having consensual anal sex with a 16 year old when they are over the age of consent. What sentence were they given? We know what the law says. Now show us the law in practice.

Edited June 4, 2014 by cybercoma

[bush_cheney2004]

....Regardless, let's say it is used. Go head and show us a case comparable to Harvey's conviction. Show us this law used in practice any time in the last 10 years to sentence someone for having consensual anal sex with a 16 year old when they are over the age of consent. What sentence were they given? We know what the law says. Now show us the law in practice.

Consensual anal sex with a 16-year-old is undefined in Canada, as it is illegal. The law is what it is. Did the board explore the exact nature of the sex crime by the offender ? What's so special about the last 10 years ? Hell, I showed you that the penalty for buggery in Canada use to be DEATH ! And one guy spent decades in prison for the crime.

[cybercoma]

Don't be fatuous. You know damn well I'm saying consensual in contrast to sexual assault. Show me a case.

Hell, we have a law on the books still that makes comic books depicting crimes illegal. S. 163(1)(http://laws-lois.justice.gc.ca/eng/acts/C-46/page-78.html#h-58

[Peter F]

Here is the existing extrad law Peter:

...

The fact that the police in Florida asked the police in Canada to pick up this woman does not mean the above does not apply. The police cooperate with each other cross border to take people in for questioning. The police can take someone in for questioning and then they have to release them if they can't charge them but they can take them in and ask them questions and in this case the police took her in to determine what she was doing in Canada, i.e., where was she planning to live, how long, on what basis. They took her in to ask questions about Immigration Act regulations for persons with no visa such as a work visa, student visa. That's why she then declared refugee status once the police took her in and said look you are an illegal alien what's your intent? She had to have a reason for staying in Canada but it does not mean they could deport her.

In fact if she said I am returning to the US on her own to the RCMP presumably they would have phoned Florida police and informed them of that. Both police forces were going through standard procedures for fleeing convicts that cross the border.

Hope that explains it. Yes it sounds contradictory but there is more than one law the RCMP could have been investigating.

Yes, thats a good point. People, even Americans, cannot just move into Canada without the proper paperwork. She apparently didn't have the proper paperwork so they would deport on that basis alone so then she made the refugee claim.

[On Guard for Thee]

Consensual anal sex with a 16-year-old is undefined in Canada, as it is illegal. The law is what it is. Did the board explore the exact nature of the sex crime by the offender ? What's so special about the last 10 years ? Hell, I showed you that the penalty for buggery in Canada use to be DEATH ! And one guy spent decades in prison for the crime.

Why are you so infatuated with anal sex? You keep bringing it up, but it's not part of the case.

[Peter F]

Clarification noted, but we don't know exactly what the sex offender did with the minor on multiple occasions. If it included anal sex, then it was a crime in Canada.

The IRB had the trial transcripts available. If there had have been anal sex with a sixteen year old then the crime she committed in Florida would also have

been a crime in Canada. Wether the IRB saw that such a crime had been committed or not we'll never know.

The Federal Court review however mentions at para 16

[16] In the circumstances, the Board was satisfied that the activities that led to Ms. Harvey’s convictions in the United States would not have constituted a crime, let alone a serious crime, had they occurred in Canada.

So if there had have been anal sex then the board would be in a precarious position to say no crime was committed. The Federal Court judge does

not dispute this finding by the board.

[On Guard for Thee]

The IRB had the trial transcripts available. If there had have been anal sex with a sixteen year old then the crime she committed in Florida would also have

been a crime in Canada. Wether the IRB saw that such a crime had been committed or not we'll never know.

The Federal Court review however mentions at para 16

So if there had have been anal sex then the board would be in a precarious position to say no crime was committed. The Federal Court judge does

not dispute this finding by the board.

I think BC just likes using the word "buggery", even though he apparently doesn't comprehend it.

[The_Squid]

Ummm... The reason for the obsession with anal sex is cuz he's a troll. No other reason... I don't even think it's a hobby of his in real life.... It's just an issue of trolling.

[On Guard for Thee]

Ummm... The reason for the obsession with anal sex is cuz he's a troll. No other reason... I don't even think it's a hobby of his in real life.... It's just an issue of trolling.

Gotta be the worst kind of trolling when you try to promote non-existant issues. But the good news is of course the worst kind is the most obvious kind.

[Peter F]

Back to this determining it was 15 times too long, this is here i think its dead wrong. How do we know that until she exhausted the Amendment 8 argument, the very same criteria we can argue under our Charter to question the length of sentence. What made them think she would lose an Amendment 8 argument to lower the sentence?

That's one of my major issues. I think they jumped the gun. What is more incredible is the standard they would have used to determine the length of the sentence is no different then ours. So you make sense out of that for me.

The Federal Court judge addressed this in her decision at paras 70-73. That was the exact issue raised by the minister for immigration; That all avenues

of appeal in the US courts had not been taken.

[70] The obligation on a refugee claimant to exhaust all domestic avenues of protection available to them prior to seeking refugee protection in Canada is not absolute. Indeed, the Supreme Court of Canada has held that it is only in situations where state protection mightreasonably have been forthcoming that a claimant’s failure to seek protection will defeat his or her claim: Ward, above at para. 49.

[71] In this case, the Board noted that repeated attempts by Ms. Harvey to challenge her sentence had been met with failure. It bears repeating that not only was Ms. Harvey’s motion for reconsideration of her sentence summarily dismissed by the trial judge, neither theFlorida Court of Appeal nor the Florida Supreme Court felt that there was enough merit in her sentence appeal to even address it in their reasons.

[72] Also before the Board was Ms. Harvey’s uncontroverted testimony that she could not pursue any further judicial remedies in the United States without first surrendering herself to the authorities, thereby exposing herself to the very sanction that the Board found to constitute cruel and unusual punishment – a finding with which the Minister does not now take issue.

[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.

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62421/index.do

As the judge says "The obligation on a refugee claimant to exhaust all domestic avenues of protection available to them prior to seeking refugee protection in Canada is not absolute. Indeed, the Supreme Court of Canada has held that it is only in situations where state protection mightreasonably have been forthcoming that a claimant’s failure to seek protection will defeat his or her claim"

Then the judge says that the IRB conclusion in this matter that all realistic mechanisms had been exhausted was a reasonable conclusion to make.

This then raises the question about the procedures of the US supreme court: Must they hear all appeals put before it? or can they, like the Canadian

Supreme Court refuse the appeal.

If the USSC must hear appeals then I would agree that that appeal must be made before considerations for protected status continue.

If, however, the USSC can refuse appeals, then I would say the IRB and Federal Court judge were right.

[Peter F]

As for the length of sentence issue:

Apparently Florida sentencing guide lines required the 30 year sentence. According to the Federal Court the Florida court sentenced her to 5 counts of

15 years each; two of those 15 year sentences to be served consecutively , and the other three to be served concurrently.

IE: four of the counts served at one time then 15 years more for the fifth account.

I guess the specific nature of the crime determines wether a perp gets the minimum sentence or a maximum sentence or something in between.

I would think that a 15 year sentence 5 times over would indicate some particularly nasty - though not murderous - sexual abuse.

I would think that whatever she did with the boy, do deserve a 15 year sentence 5 times over, whatever happened would very probably have been

illegal in Canada too. The Florida sentence tells me that this wasn't a mere matter of having a fling. All joking aside, these acts she committed must

have been a horrendous experience for the boy.

Yet the Federal Court judge makes no mention of this - only that the IRB found that her actions, had they been committed in Canada, would not have been a crime.

I am quite sure, that had there have been some particularly nasty aspect to her crime, the IRB and the Judge would have made mention of it.

But they didn't.

The reviewing judge states that the Florida judge was guided by that states sentencing guidelines. Perhaps he had no choice but to sentence her to

5 counts of 15 years. or something close to that.

Personally I'm stuck because there is no further information. We can all sit around and imagine the nature of her crime but until further information comes

to light that is all we are doing is imagining things.

So we are stuck with what evidence we do have before us to judge the IRB's decision. That evidence so far consists of only the Federal Courts review of the IRB decision as I have linked above.

The IRB found, and according to the reviewing judge it was a reasonable finding, that the 30 year sentence was cruel and unusual punishment.

The Minister of immigration did not dispute that finding either - only that the IRB should have considered accepted international standards to determine

'cruel and unusual' punishment. The reviewing judge agreed with them on that point.

So it comes down to this: was the sentence beyond accepted international standards?

If it was then sec 97 of the refugee act comes into effect and protected status is granted.

If it wasn't then sec 97 of the refugee act does not come into effect and protected status will be denied.

The judge sent the case back to the IRB and the IRB somehow somewhen concluded that she still gets protected status. And the government threw up

their hands and accepted the decision.

I am banking on that the IRB did something right and came to a reasonable decision thus allowing Harvey to claim protected status.

I think people should be allowed to claim protected status due to cruel / unusual punishment. Even Americans. Of course they must show that the

punishment they were sentenced to was indeed cruel and unusual by internationally accepted norms.

[Peter F]

In addition to the above:

If people believe that the sentence wasn't cruel or unusual, or that we should just accept US sentences then the refugee law - particularly sect 97 - must be changed to dump the cruel and unusual claim.

Do we really want to do that? or do we only want to do that for americans?

[cybercoma]

They can just add a part that says unless the claimant is from the United States

[bush_cheney2004]

Ummm... The reason for the obsession with anal sex is cuz he's a troll. No other reason... I don't even think it's a hobby of his in real life.... It's just an issue of trolling.

Reported....no more mister nice guy. Personal attacks against members discussing the technical aspects of the law in Canada and/or Florida is on topic.

[bush_cheney2004]

The IRB had the trial transcripts available. If there had have been anal sex with a sixteen year old then the crime she committed in Florida would also have

been a crime in Canada. Wether the IRB saw that such a crime had been committed or not we'll never know.

The Federal Court review however mentions at para 16

We have no idea what the IRB was able to determine about the specific nature of the crime committed by Ms. Harvey.

[The_Squid]

Reported....no more mister nice guy. Personal attacks against members discussing the technical aspects of the law in Canada and/or Florida is on topic.

Please provide a better explanation as to why you are obsessed with anal sex, particularly with those under the age of consent, other than just the usual trolling.... Enquiring minds want to know!

[bush_cheney2004]

Please provide a better explanation as to why you are obsessed with anal sex, particularly with those under the age of consent, other than just the usual trolling.... Enquiring minds want to know!

Please provide a better explanation for personal attacks against other members first. The technical aspects of such laws are directly related to this case as discussed in prior posts.

[Bob Macadoo]

In addition to the above:

If people believe that the sentence wasn't cruel or unusual, or that we should just accept US sentences then the refugee law - particularly sect 97 - must be changed to dump the cruel and unusual claim.

Do we really want to do that? or do we only want to do that for americans?

Thats been my argument all along, its too vague.....freakin lawyers. Define cruel and unusual.......and no "it depends.....or its too varied" is not a legal term. If sentencing beyond Cdn precedence is cruel and unusual...fine...incorporate that into the Immigration Act and move on. I'm willing to bet most of those saying "good job IRB" wouldn`t agree.....too subjective a topic for objectivity.