Failing to Remove Criminal Deportees

The ineffectiveness of Canada’s system of removing non-citizens who have been ordered deported has increasingly been in the news – both for failed refugee claimants who have entered the country illegally, and the ongoing reality of non-citizens convicted of serious crimes. Put succinctly, in Canada there’s clearly a difference between being ordered deported and actually being removed. Global News has provided excellent investigative reporting and analysis confirming that only 1% of the 26,000 persons who have entered Canada between ports of entry illegally have actually been removed since January 2017.

They have also reported specific case examples for both criminal and security deportations, which illustrate multiple, existing, systemic problems that obstruct the removal of these people.

Canada’s current Immigration and Refugee Protection Act (IRPA) created a process with opportunities for multiple appeals and discretionary authority to prevent removal – which is also subject to appeal. This is compounded by other practical problems, such as confirming identity, international agreements to protect persons from potential harm, and a continuing lack of co-operation from multiple countries who obstruct the return of their citizens (especially when they are being deported for criminality or they left their country of origin years previously).

In criminal deportation cases, the situation is further complicated by the concurrent application of the federal Corrections and Conditional Release Act (CCRA) which governs how all persons convicted of crime and sentenced to a federal prison are to be treated. Additionally, the unintentionally self-contradictory entitled International Transfer of Offenders Act also has potential application, although its current wording makes the Offender Transfer a one-way street… for criminals to return back to Canada.

The Macdonald Laurier Institute recently published an analysis of these issues, written by this author, which articulates the systemic inefficiencies and counter intuitive provisions that actually obstruct, and even prevent, removal of convicted criminals. It also discusses the types of reforms that are needed to resolve this unacceptable situation.

This topic has tangible public safety consequences for Canadians because non- removed, non-citizen criminals frequently continue to commit crimes – against Canadians – which could have been prevented had they been removed as clearly intended. Further, our system is so dysfunctional that it actually guarantees non-removal of convicted non-citizens – if they simply commit new crimes. And, of course, it’s Canadians who have to foot the very expensive bill of investigating, prosecuting and incarcerating these criminals who should have been removed before they committed new crimes.

I first encountered this reality back in 1994 while serving as the Executive Officer of the Canadian Police Associa­tion. A young Toronto Police officer, Constable Todd Bayliss was murdered by a non-citizen, career-criminal from Jamaica named Clinton Gayle. I discovered that Gayle had been released from his previous criminal sentence and was ultimately granted bail following another finding of criminal inadmissibility and a removal order. Gayle was subsequently released because of systemic delays including non-cooperation from Jamaica. After being released, Gayle returned to his drug dealing gang activities where he ultimately shot and killed Cst. Bayliss who was doing his job protecting the people of Toronto. His case is not the only one of its kind and yet, 24 years later, we are still struggling with this issue. And Canadian tax payers are still paying for the costs of his incarceration because he has not been returned to his country of origin to complete his sentence due to a ridiculous loophole in Canada’s International Transfer of Offenders Act – which requires the offender’s consent to a transfer, and allows a "foreign offender [to] withdraw their consent at any time before the transfer takes place."

This situation is literally an ongoing threat to public safety, as the criminal deportee systemic deficiencies means repeat offenders who should have been removed from Canada end up back on our streets where, all too frequently, they commit new crimes and create new victims. Recognizing these cases is not always easy as the media is often not aware of the offender’s non-citizen status or if there was a previous criminal history that should have resulted in the removal of the criminal before the new crimes were committed.

A good example of this is the recent case where Nabil Benhsaien was convicted and sentenced to 12 years imprisonment and a 10-year term supervision order for five savage, random attacks with a hammer on different women in Ottawa. The case took three years to complete and it was only following reporting on sentencing that the public learned that Benhsaien is a non-citizen from Morocco and that he had a lengthy previous criminal history which made him deportable under Canadian law. The fact that he wasn’t removed, which has not been explained, means he was on the streets and able to commit more crimes against Canadians.

There’s more. Because of section 50 of IRPA, he can’t be removed from Canada until he completes his sentence, which means 22 more years in Canada at taxpayer expense. Even more absurd, he can’t be transferred back to Morocco to serve his sentence pursuant to the Inter­national Transfer of Offenders Act – unless he consents! Guess what? Virtually no foreign offenders consent to their removal.

And we’re still not done... should we finally decide we don’t want him as part of Canadian society, and take the necessary steps to order his removal, he is still eligible to be released early from his court-imposed sentence which, according to our Corrections and Conditional Release Act, is for the purpose of reintegrating offenders back into Canadian society. So someone who we’ve decided we don’t want as part of Canadian society is eligible to be released early from the sentence for his crimes so he can be reintegrated into our society? I believe the technical term for this situation is… “dumb”.

Another example of the systemic incongruity is shown in the recent BC case of Aram Ali who is an Iraqi non-citizen who has just been ordered released from custody while awaiting deportation to Iraq. Ali was a gang associate who was charged with drug trafficking and released on bail. After being released on bail, he returned to his gang activities and was arrested and charged in 2009 with the attempted murder of a rival gang member. This time he was denied bail, and while awaiting trial on the new charges he was convicted on the drug trafficking charges and sentenced to three years. In 2015, he was supposedly sentenced to eight and a half years for the attempted murder charge although, in our ‘say one thing do another’ justice system, the sentence was reduced to only three and a half years because he was given ‘credit’ for pre-trial custody even though it was not required, and he was serving a sentence for the earlier crime and he was lawfully denied bail because of his ongoing criminality.

Notwithstanding all of the above, and the fact that CBSA has obtained a removal order for him, Ali was released early from the court-ordered sentence and, as the law now requires (following changes arising from the Clinton Gayle case), was handed over to CBSA where he was held in custody pending removal. As required by law, his custody was reviewed by the Immigration Board, who ordered him released. CBSA appealed but the release order was upheld last month by Federal Court Justice Paul Crampton who decided that, notwithstanding his criminal history and ordered removal, “… he would not pose a meaningful risk to the public.”

One other thing…pursuant to s. 50 of IRPA, the one way Ali can guarantee not being removed is to get arrested for committing a new crime as our law prohibits removal until both criminal prosecution and sentence is completed.

We have literally created an incentive for non-citizen criminal deportees to commit new crimes to prevent their removal from Canada.

Significant deficiencies also exist in other areas of our immigration processes including one recently revealed in the reported case of Aiesha Ali who is the Sudanese mother of a young girl who has been granted refugee status because she faced female genital mutilation because of her family’s religious beliefs. Ali arrived in Canada with her daughter and two sons in 2016 but while her daughter’s refugee claim has been approved, Immigration Canada policy doesn’t consider parents and siblings of child refugees “family members,” meaning the daughter cannot add her mother or brothers to her application for permanent residency. The result is that Ali must either break up the family and leave her daughter in Canada or return her to face the abuse she fled Sudan to protect her from.

This unjustifiable ‘policy’ is even more outrageous when one considers the case of Abdulahi Sharif who is the Somali refugee charged in the Islamist-inspired vehicle attack in Edmonton in 2017. Sharif was ordered removed from the U.S. but released pending removal. He fled upon release, and entered Canada at a port of entry where he claimed refugee status. Under the Safe Third Country Agreement, Sharif should have been denied entry, but it appears he was able to claim an exemption because he had a sibling in Canada.

It makes no sense to force separation of families where a child has been determined to be a legitimate refugee, yet allow entry of a person illegally in the U.S. who claims refugee status just because they are believed to have a family member in Canada. While this case is not about criminal deportees, it illustrates a broader systemic dysfunctionality and inconsistencies that need to be addressed.

The current legal process for removal of criminal deportees is both counter-intuitive and contrary to the public interest in many ways. The good news is that these deficiencies can be corrected in a Charter-compliant manner through legis­lative reforms. Also needed are operational and policy changes like coordinated units from police, Crown, CBSA and Corrections to expedite the removal process as well as restricting entry of arrivals from uncooperative countries and suspending any international financial aid to such countries.

There is no single solution to the systemic defects identified, but the good news is that solutions do exist – and Canadians deserve a system and a Government that better protects and promotes their interests and values.  

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Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.