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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.

A Closed Mind?

YVES LEBON, a Canadian man who is incarcerated in the United States, wanted to come home.  Vic Toews, the Minister of Public Safety and Emergency Preparedness, thought that was a bad idea.  Does a recent decision of the Federal Court of Appeal end the long battle between the two men?  What does their saga tell us about the value of Canadian citizenship for Mr. LeBon, who has been seeking for years to return to his home and native land and, by extension, about the value of citizenship for us all?

On August 22, 2007 Mr. Yves LeBon, a Canadian citizen, was stopped for a traffic violation by an Illinois state trooper.  His vehicle was searched and the officer found 119 individual 1KG packages of cocaine inside.  Thereafter Mr. LeBon pleaded guilty to possession with intent to distribute cocaine and improper entry by an alien.  On July 18, 2008 he was sentenced to ten years in jail followed by five years of supervised release.

The Canadian Charter of Rights and Freedoms provides in section six that “Every citizen of Canada has the right to enter, remain in and leave Canada”.  However, if one is in jail south of the border, of course, one cannot freely cross back into Canada except by arrangement pursuant to the terms of international treaties and domestic law.

The International Transfer of Offenders Act (the IOTA) allows Canadians to be returned to Canada to serve their sentence here where for them to do so would meet the objectives of the Act.  These objectives include:

  • contributing to the administration of justice;
  • the rehabilitation of offenders; and
  • the reintegration of offenders into the community.

Also to be considered in determining whether or not there should be a transfer, among other factors, is “whether the offender’s return to Canada would constitute a threat to the security of Canada”.

SHORTLY AFTER BEING SENTENCED, Mr. LeBon petitioned the Minister of Public Safety to be allowed to return to Canada pursuant to the terms of the ITOA.  It is important to note that any offender returned to Canada is not released into the community.  Rather, the transferee is delivered to a penitentiary where he must continue to serve the sentence imposed abroad, subject to the right to apply for parole when he meets the criteria, just as any other federal inmate must.  In making his application to return to Canada Mr. LeBon was not asking to be let free: just to continue his incarceration in Canada, closer to his family.

There were many positive factors supporting Mr. LeBon’s petition, including his admission of guilt, evidence of his rehabilitation, and the existence of strong ties to his family and a very supportive network in Canada.  Still, on August 16, 2010, despite the positive recommendation of the Correctional Service of Canada, the Minister refused to allow the transfer of Mr. LeBon back to Canada.  He reasoned that, as a lot of drugs were involved in Mr. LeBon’s crime, and as the Minister felt Mr. LeBon could have been more co-operative with the American authorities, Mr. LeBon must have been involved in a criminal organization and therefore, the Minister seemed to suggest, might continue his involvement with that organization in Canada and commit another crime here.

The Minister’s decision was taken to the Federal Court for review and there, on August 26, 2011 Mr. Justice Shore found in the Minister’s favour, concluding that the ITOA does not create or recognize a “right” of Canadian offenders to return to Canada.  The Minister prevailed, but his triumph turned out to be only a first-match victory.  The Federal Court (Trial Division)’s decision was overturned by the Federal Court of Appeal, which concluded in April 2012 that the Minister’s decision was unreasonable, as it was not “justified, transparent and intelligible”, primarily because the Minister did not give reasons why he rejected the Correctional Service of Canada’s advice in balancing the factors he was to consider.  The matter was sent back to the Minister to review within 60 days in accordance with the Court’s reasons.  Advantage LeBon.


AS THE FEDERAL COURT OF APPEAL had determined he should, the Minister reconsidered whether or not Mr. LeBon could be allowed to return to Canada.  He looked again at the pros and cons of the case and balanced them, as he was required to do.  On June 22, 2012, after doing so, the Minister refused the transfer again.  Again this decision was taken to the Federal Court for review.  This time Mr. Justice Martineau quashed the Minister’s re-determination decision, indicating that the Minister had showed a “closed mind” to the Court’s previous ruling and that the Minister “only paid lip service to the reasons and directions” of the Federal Court of Appeal, essentially rendering the same decision on the same basis as he had before.

In his decision, Justice Martineau was direct.  He indicated that, again, as was the case the first time around, it was not possible to understand on what rational basis the Minister disagreed with the expert opinions of the Correctional Service of Canada.  The court stated:

A reasonably informed person would have the clear impression that the Minister, in denying the applicant’s transfer request, simply wanted to punish him because he was caught transporting a large quantity of drugs and did not provide the names of his accomplices. This illustrates an intransigency which is symptomatic of a closed mind and leads to the conclusion that a reasonable apprehension of bias existed on the part of the Minister.

The Court continued: “I agree with the applicant that the considerations raised by the Minister are spurious, illogical, speculative and not evidence-based” and concluded that “The inferences made by the Minister are not supported by the evidence on record”, and “I also agree with the applicant that the Minister’s reasoning regarding what he believes to be the applicant’s lack of frankness in the transfer application is a more longwinded version of the Minister’s first decision and falls woefully short of being reasonable”.  Game and set for Mr. LeBon.

The Court quashed the decision of the Minister, but it went further, providing that, because “The Minister has shown a bias and has ignored the clear evidence on record supporting a transfer” the Court should issue a mandatory order requiring the Minister to accept the transfer within 45 days.

The Minister did not concede defeat.  He appealed again to the Federal Court of Appeal, requesting a stay of the obligation to accept the transfer, which request was granted.  He challenged the Federal Court’s jurisdiction to have made a mandatory order, rather than returning the matter to him to consider the transfer request a third time.

He was not successful.  The Federal Court of Appeal upheld the lower court, with the exceptions only that now the Minister was required to comply with its judgment “forthwith”, “to do everything in his power to affect the transfer of the applicant to a correctional facility in Canada”, and to pay costs fixed in the amount of just under $9,000.00.  Game, set and match for Mr. LeBon.

It is difficult to know whether the Minister will move on, as there is still an appeal to the Supreme Court of Canada available.  Assuming that, as on the last occasion, the Minister does not file an appeal to that forum, perhaps Mr. LeBon will return to Canada soon. His is a Pyrrhic victory however, as the battle to return to Canada has continued over five years at what must certainly have been great emotional and financial cost.  On the other side, although he was successful in preventing Mr. LeBon’s return to Canada for five years, the Minister is not unbruised.  It cannot have been pleasant to have been described as “closed minded” in open court, in the published decision and in the press, nor to know that, in the end, Mr. LeBon prevailed.

One hopes that in future, when a decision is made as to whether a Canadian is to be transferred home, the facts will be carefully reviewed and objectively considered, and the decision will be clear and well-reasoned.   That would be a victory not only for fairness, but also for the rule of law as no man, not even a Minister of the Crown, is above the law.

The LeBon decisions 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.