Morley Law Office

Canadian Immigration Lawyer Kingston

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Blind Justice


What is justice?  Is it about establishing responsibility, imposing punishment, or getting revenge?  If there is a place for compassion within justice, what is that place?

In honour of National Acadian Day, I would like to share with you a favourite story of mine that addresses these issues.  It was incorporated within Evangeline: A Tale of Acadie, Henry Wadsworth Longfellow’s classic tale of love and loss, set against the background of the deportation of the Acadians.

“Once in an ancient city, whose name I no longer remember,

Raised aloft on a column, a brazen statue of Justice

Stood in the public square, upholding the scales in its left hand,

And in its right a sword, as an emblem that justice presided

Over the laws of the land, and the hearts and homes of the people.

Even the birds had built their nests in the scales of the balance,

Having no fear of the sword that flashed in the sunshine above them.

But in the course of time the laws of the land were corrupted;

Might took the place of right, and the weak were oppressed, and the mighty

Ruled with an iron rod. Then it chanced in a nobleman’s palace

That a necklace of pearls was lost, and ere long a suspicion

Fell on an orphan girl who lived as maid in the household.

She, after form of trial condemned to die on the scaffold,

Patiently met her doom at the foot of the statue of Justice.

As to her Father in heaven her innocent spirit ascended,

Lo! o’er the city a tempest rose; and the bolts of the thunder

Smote the statue of bronze, and hurled in wrath from its left hand

Down on the pavement below the clattering scales of the balance,

And in the hollow thereof was found the nest of a magpie,

Into whose clay-built walls the necklace of pearls was inwoven.”

A story upon which we should all reflect, in my view.  For more information, please contact my office at (613) 542-2192, visit me at, connect with me on LinkedIn and follow me on Twitter (@lesmorley) and on Facebook!


Go Straight Home!

IT’S HARD IN PRISON, but it’s harder if you are not a Canadian citizen.  Jamaican citizen John McLeod, who is incarcerated in a Canadian prison, and who is the subject of a deportation order, has learned that lesson well.

In Canada the inter-relation of provisions of the immigration and correctional law results in the removal from the country of deportable inmates as soon as they get parole.  As they are turned over for deportation as soon as they get out of jail, non-Canadians are denied the possibility of enhancing their rehabilitation through day parole and supervision in the community, something available to their Canadian counterparts.  Is this unequal treatment consistent with our Charter of Rights and Freedoms?

Mr. McLeod felt that it was not.  He asked for parole but was denied it, so he challenged the laws that prevented him from having the benefit of day parole and a gradual release back into the community.  Although the fine contours of his argument were not clearly stated in the court’s judgment, Mr. McLeod seemed to be suggesting that he wanted to have the benefit of day parole and that, if had had that benefit, he might have been in a better position to get full parole later because, by obtaining and then successfully completing day parole, he could have proved he was ready for full parole.

It is certainly the case that a Canadian in Mr. McLeod’s situation would have had a better shot at parole than Mr. McLeod did.  A Canadian could have argued that although he might not yet be ready for full release into the community (full parole), he could at least meet the lower standard necessary to establish he could function at a halfway house under much closer supervision (day parole).  Mr. McLeod did not have that option as, if he had been granted day parole, he would have been immediately deported.  In other words, Mr. McLeod could not achieve his objective of securing release, because he did not have access to all of the tools that Canadians have to realize such an objective.

It should be noted that, as a practical matter, with the law as it is currently constituted, it is highly unlikely that the Parole Board of Canada, knowing that a grant of day parole would trigger Mr. McLeod’s removal from Canada, would grant him day parole.  From the perspective of the members of the Board, it would be illogical to carefully consider his plan, presented at a parole hearing, to be released to a Canadian day parole facility that he would never see, because he would be deported before he got there.  Knowing that an applicant for parole will be deported, the Board is generally only interested in considering a plan for parole for the purposes of deportation where the person before them is subject to a deportation order.  The Board Members only want to know what a person in Mr. McLeod’s situation will do when he gets back to Jamaica, as removal there is the only possible outcome of a grant of parole.

So how did the Federal Court address the issues raised by Mr. McLeod?  First, Mr. Justice Rennie said that he did not believe that there was a factual basis for addressing them at all, because the Parole Board had concluded that Mr. McLeod was not ready for any kind of parole, and therefore he was not denied parole because of the deportation order against him.

As respects the legislation, the Court noted “Parliament has the right to prescribe the conditions under which foreign nationals who are convicted in Canada will be removed from Canada” and continued:

As the applicant has no right to remain in Canada, he has no right to access Canadian society under terms and conditions that are available to Canadian citizens; hence no Charter issue arises from the decision by Parliament to link the removal to the completion of sentence, namely the first date of some form of parole eligibility.

Likewise, Mr. McLeod was not arbitrarily detained, because the loss of a day parole option for him was rationally connected to sentencing objectives within the context of having no right to remain in Canada.  While persons in Mr. McLeod’s position are treated differently than Canadian citizens, the Court noted that “not all distinctions are discriminatory” and Mr. McLeod was not denied day parole because of circumstances beyond his control, but because of the interplay between his choices not to become a citizen and to commit a crime.

As a result, it is now clear non-Canadians can be denied parole options available to Canadians, and there will be no violation of the equality, fundamental justice or arbitrary detention provisions of the Charter.  Once a non-Canadian penitentiary inmate is ordered deported, he will be removed to his country as soon as he gets full parole, which is his only release option.

Still, there was at least one question left unaddressed by the Court that might form the basis for future consideration.  Given that the promotion of international justice is an objective of immigration legislation, can it be said that that objective is achieved by deporting to another country offenders who have not had the opportunity to rehabilitate themselves through day parole and gradual release into the community?

The McLeod decision may be found here.

Senior Citizens Behind Bars

AN EDITORIAL IN TODAY’S New York Times reminds us of yet another cost of get-tough-on-crime policies: when more people are required to spend more time in jail, the population of elderly inmates increases.   Amongst other serious repercussions of such a development, there is a substantial increase in healthcare costs in prisons.  A 2010 Human Rights Watch report estimates the cost of providing medical care to elderly inmates in American prisons at between three and nine times the cost of providing care to the younger ones.

In the United States one out of every 12 inmates is now over 55 years old, an increase 240%  greater than the increase of the overall inmate population.  This follows upon tough mandatory sentencing policies that became popular in the 1970s.

According to a recent CBC report, one in four offenders in Canada under federal sentence, that is, in a penitentiary or on conditional release, is over 50 years old.  There are almost 1,000 inmates over the age of 60.

Given the commitment of the current government to building more prisons despite a dropping crime rate, perhaps it is time to consider doing here what is now beginning to be done in the United States: building prisons specifically for elderly inmates.

Paint It Black

A recent article by Conrad Black is good reading, but have a dictionary within reach: Lord Black likes you to remind you he knows fancy words!

The article, “Canada’s inhumane prison plan“, may be found in the May 29, 2010 National Post. It contains unexpected support for those of us who oppose the Conservative government’s justice agenda; unexpected as it is written by someone who would appear to be a pillar of the Conservative establishment, writing in a conservative publication. Perhaps even more unexpected is Black’s citation with approval of Michael Jackson and Graham Stewart’s “Fear-Driven Policy“, an essay appearing in the Literary Review of Canada. Both Jackson and Stewart are well-known Canadian prison reformers.

To get a flavour of Black’s piece, take note of what he says about Prime Minister Harper’s correctional policy document, which is called A Roadmap to Strengthening Public Safety:

The Roadmap is the self-serving work of reactionary, authoritarian palookas, what we might have expected 40 years ago from a committee of southern U.S. police chiefs. It is counter-intuitive and contra-historical: The crime rate has been declining for years, and there is no evidence cited to support any of the repression that is requested. It appears to defy a number of Supreme Court decisions, and is an affront, at least to the spirit of the Charter of Rights.

Don’t hold back Conrad!

Perhaps most interesting of all, from my perspective, is the number of supportive comments – critical of the government’s plans – from readers. You can find them at the end of the article.

Getting tough with crime seems to be an important part of the current federal government’s agenda

Getting tough with crime seems to be an important part of the current federal government’s agenda. Recent government initiatives include, amongst others, increasing the number of offences with minimum punishments. Is this get-tough approach really helpful in reducing crime?

According to the authors of Criminological Highlights, a publication of the University of Toronto’s Centre of Criminology, the evidence gleaned from studies of the application of minimum penalties over the last 40 years is clear: mandatory minimum penalties “do not affect crime rates”, and actually “interfere with accountability and the efficient operation of the criminal justice system”.

Developments in the law of deportation since the early 1990s reveal a similar movement away from the exercise of discretion by independent decision-makers and towards a quicker but much more harsh one-size-fits all approach. As a consequence, people who have grown up in Canada and who, in some cases, may have lived here for many decades, are being deported from Canada without a hearing, splitting up families and returning the deportees to countries with which they no longer have any connection, and which can ill afford to receive them.

While it is true that some immigrants to Canada have committed crimes , the evidence, according to Criminological Highlights, is that “violent crime rates decrease when immigrants move into a city”, at least “in part because immigrants are more likely to bolster intact (two-parent) family structures”.

Given that mandatory minimum penalties do not reduce crime, and that immigration results in reduced crime rates, is the current government’s policy respecting crime in Canada a responsible one?

These and other astounding insights are available for review in the most recent issue of Criminological Highlights, and are well worth a read.