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Foreign nationals unfairly treated by Parole Board of Canada

published April 22, 2019

Foreign nationals convicted of serious offences are receiving unfair treatment by the Parole Board of Canada, British Columbia criminal lawyer Dr. Gary Botting tells AdvocateDaily.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, acts for two U.K. citizens who received “dangerous offender” and “long-term-offender” designations for crimes committed decades ago.

Under Canada’s immigration laws, any non-citizen sentenced to more than six months in jail becomes eligible for removal to their country of origin, and both of Botting’s clients would face deportation if they are ever released.

“If these guys had been Canadian, there’s no question they would be out of jail by now, being monitored in the community,” he says. “But, because of the spectre of deportation, Corrections Canada is reluctant to allow them out on parole because they would lose control of what happens to them once they’ve left the country.

“So instead, they’re kept in custody, literally until they die. There’s an unfairness built in there,” Botting adds.

He says there’s an irony to the fact that authorities act so speedily to deport offenders who serve sentences for far less serious offences.

“Whereas here, it’s the opposite. The parole board seems to want to keep them here for as long as possible.”

One of Botting’s clients was designated as a dangerous offender following his conviction for serious crimes several years ago. Under normal circumstances, he explains that label would result in the imposition of a custodial sentence, followed by a term of supervision of up to 10 years for people deemed likely to reoffend.

“He’s served his time, but because of the concern he will be deported right away, the parole board won’t release him,” he says.

Another client of Botting’s was jailed indefinitely in 1989 after being designated a long-term offender following his attempted abduction of young girls. Now in his 80s, the man is more likely to need hospice care than to live out in the community should he get his wish to return to the U.K., Botting says.

“The U.K. has shown some interest in transferring him, but every time he goes up before the parole board, they’re leery about sending him because they would have no control over the monitoring of his conduct,” he says. “If he were Canadian, he would be released into the community, and monitored by a community parole officer.”

Instead, Botting’s client has had to settle for an institutional parole officer who he says has predictably and repeatedly recommended his client’s continued incarceration.

The man sought judicial review of the parole board decisions but lost at both the Federal Court and the Federal Court of Appeal, which ruled, “It is for the Parole Board, not for this Court, to determine all relevant legal and factual issues, including Charter issues.”

“Right now, he’s just marking time and waiting to die in prison,” Botting says.

To rub salt into the wound, the man’s court challenge was dismissed with costs, he says.

“He earned $3 per day tops for 30 years, as long as he could work, and now he’s got a bill for thousands of dollars that he will never be able to pay,” Botting says. “It’s another unfairness built into the system.

“All that does is discourage anyone in prison from challenging their parole in the proper forum.”