Was Canada right to grant asylum to U.S. woman facing 30-year sentence for sex with teen boy?

Steve Mertl
National Affairs Contributor
Daily Brew
Was Canada right to grant asylum to U.S. woman facing 30-year sentence for sex with teen boy?

Who comes off looking worse in the bizarre case of Denise Harvey?

Is it the Canadian government, which has granted the convicted U.S. sex offender protected-person status after a lengthy review by the Immigration Refugee Board and the Federal Court?

Or is it the Florida justice system, which sentenced the Vero Beach mortgage broker to 30 years in prison for having consensual sex with a 16-year-old boy who played on her son's baseball team?

There's no doubt the tough-on-crime Conservative government is choking on the recent ruling of the Immigration and Refugee Board (IRB) that the 47-year-old Harvey deserved protected-persons status, based on her claim the prison sentence was cruel and unusual punishment.

The government last year won a Federal Court ruling that ordered the IRB to rehear the case, but the board upheld its original decision to the consternation of Citizenship and Immigration Minister Chris Alexander.

“Our Conservative government reformed Canada’s asylum system in order to protect genuine refugees, individuals truly in need of protection,” Alexander said in an email to CBC News.

“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.”

[ Related: SMU student suspended after sex assault guilty plea ]

No doubt Ms. Harvey would disagree.

Her problems began when she was convicted in 2008 of five counts of having sex with a minor, a boy whom she met at her son's baseball practices, the National Post said.

The judge jailed her for 30 years, a sentence upheld despite two appeals. But before she could be taken into custody, Harvey, who had always asserted her innocence, fled to Canada with her husband and son in 2009.

The family settled in Pike Lake, Sask., near Saskatoon, but Harvey was arrested by the RCMP in 2011, triggering her refugee claim.

Ordinarily, extradition in cases like this are just a matter of time, but Harvey had a key fact on her side. Besides the argument that 30-year sentence was heavy handed, the acts of which Harvey was convicted are not a crime in Canada.

Florida law makes it illegal for anyone over the age of 24 to have sex with someone 16 or younger, the Post noted. The age of consent in Canada is 16, unless the older person is in a position of trust or authority (such as a teacher or coach), when the age of consent rises to 18.

Extradition normally requires that the offence be a crime in both countries.

However, one of the Florida prosecutors on the case told the Post the fact Harvey was not fleeing prosecution but had already been convicted should have been considered.

“It is incomprehensible to me that Canada would grant her any type of immigration relief under these circumstances,” Nikki Robinson told the Post via email.

[ Related: Veteran senior Mountie charged with underage sex offences ]

Barry Golden, senior investigator with the U.S. Marshall's Office in Miami, would not say whether any fresh attempt would be made to extradite Harvey, but said the case would remain open.

“If she does come back to the States there will be an active arrest warrant for her,” he said.

The IRB decision opens the door for Harvey to become a permanent resident of Canada and eventually apply for citizenship.

There's been little evident comment in Florida on the Canadian decision but a 2011 editorial in TCPalm suggested the sentence overkill was at least partly responsible for the problem.

As in Canada, many U.S. states do not bar consensual sex between 16-year-olds and adults, and where it is a crime the punishments frequently are light.

"The 30-year sentence handed down was a shock," TCPalm observed. "If the sentencing judge's hands were tied according to law, then the law needs to be reformed to comply a little more with common sense, the severity of the crime and the threat to society.

"Thirty years? Some murderers don't get that much time."