Monday, 26 May 2014

American sex offender permitted to remain in Canada  


As a general policy, foreign sex offenders who somehow manage to get into Canada are not permitted to remain in Canada. But this article deals with a case where an American convicted sex offender was permitted to remain in Canada.

Denise Harvey, (now 47), had lived in Vero Beach, Florida. She was the president of a mortgage company. In August 2008, she was sentenced to 30 years in prison for having sex on five occasions with a 16-year-old boy in 2006. The age of consent in Florida is 18. In Canada, the age of consent is 16 years old although it is 18 if the two people are in a situation defined as a power dynamic such as teacher and student. In Florida, it is a felony to have sex with a child 18 or under if the adult is 24 years of age or older. The boy was a friend of her son. She began flirting with him and the pair had sex on five occasions, including at the victim's home and in her office where she worked as a mortgage broker and president of her firm. The victim's sister tipped off police after she once walked in on them having sex. After police launched an investigation, Denise was recorded telling the teen to lie to police and tried to blackmail his sister not to help authorities.


Before sentencing, Harvey’s son asked Judge Dan Vaugh for leniency, saying he needed his mother. Her husband, Charles Harvey, wasn’t present because he was sick. The judge sentenced Denise to 15 years for each offense. But only two of the terms were to be served consecutively, one after the other. The other three were to be served at the same time as the other two. Her attorney filed an appeal and she was released on a bond of $150,000.  Many of the people in Vero Beach were shocked at the sentence she was given. Needless to say, so was she and her family.


On February 11, 2011, Florida's Fourth District Court of Appeal ruled Denise Harvey should surrender to law enforcement to begin serving a 30-year state prison term since the court denied her legal appeal. Following that, the Florida Supreme Court also ruled against her.                                      


The then 45-year-old woman hadn’t shown up at the prison where she would serve her sentence and the State Attorney's Office had started calling on other agencies to help find her. The Treasure Coast Crime Stoppers posted her name on state-paid advertisements asking for people along the Treasure Coast to offer tips that could lead to her arrest. That information is usually picked up by other crime stopper agencies around Florida. There's was a $1,000 reward for information that would lead to her arrest. 

Denise was supposed to remain in Florida and keep the court updated on where she was living. But a letter to her last officially known address, in Deltona, was returned undeliverable

A fugitive from justice in Florida, she had been on the run for about six weeks. In late February 0f 2011, she was supposed to turn herself in and begin serving her 30-year sentence. The bonding company holding her $150,000 bond had to pay the court for Harvey being a no-show.


Before fleeing to Canada, did Denise Harvey study the case of Laurie Bembenek?  You may recall the “Run, Bambi, Run” chant in the early 1990s. She too fled to Canada. Bembenek died in November 2010 at age 52. Her story inspired a made-for-TV movie Woman on Trial: The Lawrencia Bembenek Story, which starred Tatum O'Neal. It was later determined that she was innocent of the crime she original was convicted of

Denise fled to Canada with her husband and son. They lived in Pike Lake, Saskatchewan where the town of 18,000 people in that tightly knit community got to know Denise Harvey as just another neighbour, an ordinary woman.  The system finally caught up with her when she was arrested in April 2011 by the RCMP (federal police force) in Pike Lake. She made an appearance before an Immigration and Refugee Board adjudicator and was released on a $5,000 bond. She had claimed refugee status to avoid being forced back to Florida, arguing that the 30-year-sentence she received was too severe

Harvey and her husband had previously entered the country through the American/Canadian border and one of the conditions of her release by the Canadian Authorities is that she has to continue living with her husband. She put up a $5,000 bond.


The IRB initially granted asylum to Ms. Harvey. In federal court documents, the board noted that there was no evidence that the sex was not consensual. The physical relationship was only illegal because of the age difference. The Board found she was a person in need of protection as someone facing cruel and unusual punishment by Canada’s standards, imposed on her in disregard of accepted international standards. A thirty-year sentence for the crime she committed is extremely excessive. Of course, in the United States, excessive sentences are the norm in that country

Canada’s Minister of Citizenship and Immigration sought to overturn that decision. She was then stripped of her refugee status by Canada's Federal Court and as such, she could be extradited back to the US to serve her sentence. 


The judge in the Federal Court ruled that the IRB had not provided adequate reasoning explaining why Ms. Harvey’s sentence contravened international standards. “We do not know which of Ms. Harvey’s arguments on the question of ‘accepted international standards’ were or were not accepted and why that was,” wrote Justice Anne Mactavish

This federal court decision however cleared the way for Denise to have a new IRB hearing.

Alexis Pavlich, spokesperson for Chris Alexander, Minister of Citizenship and Immigration Canada, said the government’s position in the case is clear, noting it had appealed the ruling. She added, “Our Conservative government is committed to keeping Canada’s streets and communities safe for all Canadians, particularly for those who are most vulnerable, [our] children.”

Let’s look at sentences in the US given to adults having sex with children. 

Mary Kay Letourneau was a teacher at Shorewood Elementary School in Seattle, Washington. She first met Vili Fualaau when he was in second grade. In 1995, she became Fualaau’s sixth grade teacher. Unhappily married, she began an affair with Fualaau, then 13 years old, in the summer of 1996. Her husband discovered the affair, and in February of 1997 Letourneau was arrested for rape. In May of 1997, Letourneau gave birth to a girl, Audrey, fathered by Fualaau. In August of 1997, Letourneau pleaded guilty to two counts of second-degree child rape, and was given a suspended seven-year jail sentence, serving six months in the county jail

Debra Lafave was a reading teacher at Angelo L. Greco Middle School in Temple Terrace, Florida. In June of 2004, she was arrested on charges of having sexual intercourse with a 14-year-old boy. Police records report that Lafave had performed oral sex on the boy on June 3rd, and had sexual intercourse with the him in a portable classroom at her school nine days later. In December of 2004, investigators released audio and video tape of Lafave with the victim in a convenience store. During the months before her trial, her defense attorney stated that Lafave was too pretty to go to jail, saying "to place Debbie into a Florida state women's penitentiary, to place an attractive young woman in that kind of hellhole, is like putting a piece of raw meat in with the lions." He also indicated that Lafave planned to argue she was not guilty due to insanity, as she suffered from bipolar disorder. As the trial date approached, the victim's mother learned that the case was set to be aired on Court TV, and agreed to a plea deal that would let Lafave avoid jail time. Lafave pleaded guilty in November of 2005 to two counts of lewd and lascivious battery, and received three years of house arrest.

Lisa Lavoie was a 24-year-old teacher at Maurice A. Donahue Elementary School in Holyoke, Massachutes.  On February 13, 2009, an eighth-grade student's parents asked the school to investigate the relationship between Lavoie and their son. However, when school officials tried to question her, she and the 15-year-old boy disappeared. On what Lavoie's lawyer would later call a "meandering" road trip, the duo drove up and down the East Coast for two weeks, driving through Vermont, New Hampshire, Delaware, New York and Pennsylvania as police continued to search for the pair. They were discovered by West Virginia local authorities on February 23, 2009. In June of 2009, Lavoie was indicted for six counts of statutory rape and one count of enticing a minor, and was charged at a later date with three further counts of aggravated rape and abuse and three counts of statutory rape

On January 26, 2011, Lisa Lavoie was sentenced to five years probation after pleading guilty to three counts of statutory rape and one count of enticing a minor under the age of 16

Nicole Long was a 29-year-old English teacher at Ayersville High School in Defiance, Ohio. She was arrested on charges of sexual battery of a 17-year-old male former student in January, 2006. According to police documents, Long and the student had sexual intercourse in Long's home one afternoon in June of 2005. By the time the charges came to light, Long was nearly seven-months pregnant, though it was never revealed if the father was the student or her husband

During a court appearance, she told a judge that at the time of the incident between herself and the student, she had been taking Zoloft, a medication that treats anxiety and depression. She pleaded guilty in January of 2006 to third-degree sexual battery. She was sentenced to 45 days in a county jail

Carrie McCandless was a teacher and cheerleading coach at Brighton Charter High School in Brighton, Colorado. She was accused in December of 2006 of having sexual contact with a 17-year-old male student during an overnight school camping trip. According to her arrest affidavit, McCandless supplied students on an October 2006 camping trip with alcohol, and "did everything except having sex" with a 17-year-old male student while another student slept on a couch nearby. She was fired from the school where her husband, Chris McCandless, was employed as the principal. She pleaded guilty in the summer of 2007 to sexual assault on a child by one in a position of trust and contributing to the delinquency of a minor, and was sentenced to 45 days in jail

Jennifer Mally was a 26-year-old English teacher and cheerleading coach at Paradise Valley High School in Phoenix, Arizona. In May of 2007, she was arrested on charges of having a sexual relationship with a 16-year-old male student. Mally denied the charges, pleaded not guilty, and hired a former U.S. Attorney to serve as her defense lawyer. In June of 2007, the Phoenix Police Department released secret tapes of Mally talking to the boy on the phone, recorded with the victim's permission. On the tape, Mally can be heard telling the boy, "You’re 16, If they find out, I’m going to fucking jail." Police also released video from the interrogation room, during which she repeatedly denied all charges to police investigators. After investigators left the room, she called her husband and said "I know what I’m doing. I watch CSI.

In May of 2008, after several delays in the trial, Mally pleaded guilty to three counts of sexual conduct with a minor. During the sentencing hearing, a clinical psychologist who had interviewed Mally after her arrest said, "Her actions were not predatory in nature. She did not seek out the boy for sex. She had a low self-esteem, and needed constant reassurance. In her capacity as the cheer coach, she was 'one of the girls.' She was incapable of internalizing her authority role and ill-equipped to manage the demands of her profession.” Despite what the psychiatrist said in court, Mally was sentenced in May of 2008 to six months in prison

Not all sex offenders, especially those in position of trust, such as teachers, got minor sentences

Stephanie Ragusa was a math teacher at Davidsen Middle School in Tampa, Florida. In between March and April of 2008, she was arrested three separate times for having sex with two different underage male students, one 16 and the other 14. The third time, Ragusa was arrested as she was leaving the teenager's house and returning to her boyfriend's truck. During the investigation, police said they were able to confirm one boy's testimony due to distinctive tattoos around Ragusa's "groin area." Photographs of these tattoos were later released to the press. She was in the national press yet again in June of 2008, after it was discovered that she had written a sympathetic letter to 17-year-old Nick Hogan, son of the wrestler Hulk Hogan, while he was in jail. Text messages from Ragusa to one of the teens were released in August of 2008, including one that read simply, "I loved today. The sex was amazing." The boy replied, “Yes I know!” Stephanie Ragusa eventually entered a guilty plea as part of a plea deal. On June 28, 2010, she was sentenced to 10 years in prison with five years of sexual offender probation

She didn’t get 30 years in prison like Denise Harvey received. I am convinced that the IRB was well aware of the dissimilarities between the various sentences given in the US and realized that 30 years in prison for the same kinds of crimes, far exceeded what was in their minds, as being reasonable. Further, it is far above what she would have received if she had committed the same crime in Canada.

Canada has a firm policy with respect to refugees. If the country they are to be sent back to has the death penalty, and the refugee could be sentenced to death in that country, Canada won’t return them to that country because Canada doesn’t have a death penalty. If the country they are to return to is notoriously known to inflict torture on its citizens, Canada will not return a refugee to that country because in Canada, torture is a criminal offence. It follows that if a country has sentenced a criminal to an enormously excessive sentence for a crime that doesn’t deserve such a sentence, Canada will not send the refugee back to that country. If the Florida judge had sentenced Denise to six or ten years, perhaps the IRB would have been less sympathetic.


The IRB granted Denise Harvey ‘protected person’ status in Canada and if she behaves herself, she and her husband can later apply for permanent residence in Canada. In my opinion, that decision is a reasonable one which is far better that the one she got in Florida.

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