U.S. Sex Offender Receives Asylum in Canada

by Jason Dzubow on May 28, 2014

in Asylees and Refugees, International

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A convicted sex offender who fled the United States to escape her 30-year prison sentence has been granted protected person status in Canada.

Canadian boys celebrated the decision in Ms Harvey's case.

Canadian boys celebrated the decision in Ms Harvey’s case.

In August 2008, Denise Harvey was convicted in a Florida court for having sex with a 16 year-old boy–a friend of her son’s. After refusing a plea deal for 11 years, Ms. Harvey went to trial. She was convicted and sentenced to 30 years in prison. While her appeal was pending, she remained free on $150,000.00 bond. In 2010, when it became clear that the appeal had failed and that she would have to report to prison, Ms. Harvey fled to Canada.

She crossed the border and moved to Saskatchewan with her husband. They settled in a small community outside Saskatoon.

The Law caught up with Ms. Harvey in April 2011, when Canadian authorities arrested her. Later that month, she appeared before an Immigration and Refugee Board (“IRB”) adjudicator and was released on a $5,000.00 bond. Ms. Harvey requested “protected person status” and claimed that the 30-year sentence was cruel and unusual. She noted that her crime–having consensual sex with a 16-year old–was not illegal in Canada.

The IRB agreed that the sentence was cruel and unusual and granted Ms. Harvey protected person status. To obtain protected person status, an applicant must show that returning to the home country would subject the person to torture, cruel and unusual punishment or death. No nexus to a protected ground is required. People who received protected person status are eligible to apply for permanent residency and eventually obtain Canadian citizenship.

The Minister of Citizenship and Immigration, Chris Alexander, appealed the IRB ruling on two occasions, but Ms. Harvey’s protected person status was finally upheld last month. The Minister commented:

I find it mind-boggling that individuals from the United States, which has been designated a safe country, precisely because it respects human rights and does not normally produce refugees, think it is acceptable to file asylum claims in Canada. Lucky for them, they have no understanding of what true persecution is, and what it means to be a genuine refugee.

I am not sure that Ms. Harvey would agree with him. And luckily for her, the Canadian courts did not agree with him either. I suppose this highlights the old trope that no country is safe for everyone all the time (and indeed, even in the United States, Ms. Harvey is not without her supporters. In her home community of Vero Beach, Florida, 2,000 people–more than 10% of the total population–signed a petition requesting that Florida’s governor pardon her).

As for me, I must agree that a 30-year sentence for consensual sex with a 16-year-old boy is a bit over the top. Of course, reasonable people can differ about this, but the Canadians (and who is more reasonable than the Canadians?) have not even criminalized this behavior. Also, there is no indication that the victim suffered particular trauma as a result of the “unlawful sexual activity.” If there was evidence that he had been traumatized by Ms. Harvey’s conduct, then the punishment might be more easily justified.

While I agree with the result, the IRB decision does leave some unanswered questions: Would the decision have been the same if the perpetrator was a man and the victim was a 16-year-old girl? What if the sentence had been less severe? Does Canada plan to offer protected status to every U.S. citizen convicted for a crime that is not punishable in Canada? Does it plan to evaluate each U.S. sentence to determine whether it is “cruel and unusual”? The death penalty has been eliminated in Canada, so if a U.S. citizen facing the death penalty reaches Canada, will he be offered protected status?

The Canadians may have to deal with these issues in future cases, but Ms. Harvey’s case is relatively easy. The sentence is so excessive and the crime so seemingly minor that Ms. Harvey appears deserving of protection. Only time will tell if other convicted criminals will follow Ms. Harvey’s lead. If so, it will be interesting to see how the Canadian authorities respond, and if the U.S. government takes offense.

{ 3 comments… read them below or add one }

Patti Lyman May 28, 2014 at 5:15 pm

Jason, the sex was not “consensual” because a 16 year old lacks the capacity to consent to sex with anyone over 24 in the state of Florida
unless they are married. It doesn’t matter whether the kid liked it or not or whether it traumatized him.
Having said that, 30 years is a long sentence.

Reply

Jason Dzubow May 28, 2014 at 5:34 pm

Shazbat! That is a good point. The sex was not legally consensual. However, it sounds like the boy “consented” to it the layman’s sense. Nevertheless, I have to give you that one. Thank you for pointing it out.

Reply

Cara May 28, 2014 at 3:26 pm

Wow, interesting case. Never could have thought of a situation where a US citizen would seek asylum in Canada and get it!

Reply

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