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Automatic deportation law hinders justice, experts say

A law allowing any non-citizen sentenced to two or more years in prison to be automatically deported has distorted the justice system and led desperate people to plead guilty in return for a reduced sentence, lawyers say.

Immigration and criminal-law specialists say examples of injustice are already piling up and the law is just three months old.

"The potential for serious destruction to the integrity of the criminal-justice system is imminent," lawyer Marshall Drukarsh said. "Obviously, it's starting to happen. I'm a screaming advocate of people becoming aware of the collateral damage."

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Lawyers warn that a desperate non-citizen will do anything to drag out his pretrial incarceration, including refusing bail, in the hopes that the sentencing judge will take this time served into account and levy a sentence that falls below the magic two-year point.

"They will go kicking and screaming to their trials," Mr. Drukarsh said. "They will try to take two or three times as long to get there. They will fire their lawyers or suddenly get a cold on their trial date, rather than risk going . . . somewhere where they could be executed just for having been involved in a drug deal."

Lawyers also believe defendants facing deportation may offer to provide evidence against others, perhaps even false evidence, in return for lenient treatment.

"The police can tell them: 'If you don't play ball, we'll plump for two years and you're going to be cooked,' " Mr. Drukarsh said. "They will sing like a bird, whether the guy did it or not."

As their deportation dates approach, desperate individuals may also be driven to harm or kill fellow inmates or guards in order to secure a new sentence, Mr. Drukarsh said.

"If the only way to stay in Canada is to stick a knife into the guy next to you, you'll do it. By staying in jail, at least his wife and children will be able to visit him."

Immigration lawyer Guidy Mamann said a client of his who had been sentenced to two years for unlawful confinement was recently deported, and his wife and two children were left behind.

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Mr. Drukarsh said he knows of one woman who was deported after receiving a two-year sentence for criminal negligence causing death in connection with a highway accident. He said the woman had lived in Canada for decades.

He also cited the case of a Polish immigrant who turned to alcohol after his marriage broke up. After accumulating several charges of impaired driving, the man accepted a two-year sentence. Despite being commended by therapists for his excellent progress in counselling and alcohol abuse programs, Mr. Drukarsh said the man is now being "exiled" back to Poland.

Two days ago, Mr. Mamann sent a letter about the consequences of the legislation to about 1,400 defence lawyers. "Many lawyers and judges are not aware of this change in the law and are shocked to learn they are sending individuals back to countries they may never have known," he wrote.

Mr. Mamann said many Crown prosecutors he has spoken to "have absolutely no idea of the implications."

However, lawyer Paul Copeland noted that the provision can be a boon to prosecutors. "It is going to be an extraordinary club for Crowns to use in plea-bargaining," he said. "They only have to say: 'If you don't plead guilty, we'll ask for three years and throw you out of the country.' "

Specifically, the new legislation deprives deportees of their right to have their cases reviewed by the Immigration Appeal Board. Their domestic situations, their lengths of residency and their overall patterns of conduct are not taken into account under the new law either.

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Mr. Copeland said that immigration officials never came through on assurances they made to a Senate committee last spring that they would set new standards for these automatic deportations.

"So, you have an undefined process for bouncing people who may have been in the country since they were four years old," he said.

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More


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