Monday 16 February 2015

Fleeing from the United States to avoid psychological torture

On October 6, 2010, Matthew deHart (an American citizen) was indicted in Tennessee for his production and transportation of child pornography. His home had been searched and his computer seized on January 25, 2010. He managed to flee to Canada however he was stopped and detained on August 6, 2010, by American officials when he crossed from Canada to the United States at Calais, Maine. He was detained in Maine until October 2010. He was transferred to Tennessee ultimately released from custody in that State on May 22, 2012, subject to conditions with his parents posting as security for his release two automobiles that they owned and his grandmother posting equity in her house in Indiana. He remained on pre-trial release until April 4, 2013, when he failed to appear for a status conference and detention review hearing related to his case. A bench warrant was issued for his arrest after he left the United States and entered Canada with his parents, Paul and Lee Ann DeHart on April 3, 2013. Obviously this trio had no love for his grandmother.

On April 4, 2013, Matthew was arrested by Canada Border Services Agency on the grounds that his refugee claim was suspended pending an admissibility hearing. All three claimed refugee protection upon their entry to Canada on the basis that the Matthew had been tortured by authorities in the United States and he feared persecution if he was returned to the United States.  He alleges that he was drugged, subjected to psychological torture and questioned by FBI agents in relation to national security matters.

He alleged that he had been a member of the online hacker group Anonymous since it was founded. As a result, he was privy to what he believes is a leaked government document relating to the national security of the United States. He claims that the child pornography investigation is a cover for the United States government to attempt to retrieve this leaked document from him and investigate him for espionage. This is the basis for his fear of persecution. He stated that he believed this was the reason for his interrogation and so-called torture in August 2010.

Let me say from the get go, I doubt that the police would have charged him with the child pornography if they hadn’t found images on his computer that appeared as child pornography. But there is no doubt in my mind that he must have had something on his computer relating to a copy of a leaked government document that was of some concern to the Homeland Security investigators.

At the first detention review hearing on April 8, 2013, Matthew was ordered detained namely on the grounds that he was a danger to the public because of his charge of being charged with a sexual offence, he was facing allegations of espionage, he had a history of violating court orders and for these reasons, he was unlikely to appear for future immigration proceedings. The Board noted that his detention was warranted as he was a danger to the public due to the serious nature of the child pornography offences It also found that Matthew had not presented a suitable alternative to detention nor was there any indication that he faced a lengthy detention.

A second detention review hearing was held five days later. Matthew requested that he be released on his own recognizance pending his admissibility hearing. The Board rejected his request as being an alternative to detention. He must have thought that the Canadian authorities were gullible.

It was noted that Matthew’s case was recent and the authorities acting under the auspices of the Minister of Citizenship and Immigration felt they ought to be given a reasonable amount of time to prepare their case against him.  Considering his failure to appear in court in the United States, detention was a better option than releasing him.  

A third detention review hearing was held on May 13, 2013. The Board again confirmed that Mathew posed a danger to the public and was unlikely to appear for further proceedings. The Board repeated that his fear of being returned to his home country increased the likelihood that he would fail to appear for future proceedings. The Board again found that his detention was unlikely to be lengthy.

Although Mathew had proposed that he be released and that a church in Toronto would provide a residence for him and financial support, the Board rejected this alternative as it did not address the concerns regarding the danger he posed to the public or his risk of flight. Where were his parents at this time?          His next detention review hearing was held on June 12, 2013. The Board restated its concerns about the danger to the public posed by Matthew and the likelihood he would not appear for future proceedings. His detention was continued.

It was on this date, the Board noted that his detention was becoming lengthy, and he was facing a lengthy period of future detention. It expressed concern that there had been no disclosure package from the Minister as of the date of the hearing, and requested the Minister to advise when it would be ready. The Board suggested to Mathew that he retain legal counsel to help him in this matter and that he propose a substantial release plan for his next detention review hearing.

Matthew’s fifth detention review hearing took place on July 10, 2013. The Board relied on the same reasons as in the previous decisions and continued his detention. The Board noted however that hearing dates were set for his admissibility hearing and his refugee protection claim, and these would take place shortly. The Board noted that Matthew was working on a substantial release proposal however the five thousand dollar performance bond offered by his parents did not satisfy the Board’s concerns. I can appreciate that decision considering that his parents reneged on their previous bond and helped him escape from the United States. Due to the fact that Matthew’s two hearings were due to take place fairly close together and with regard to the previous reasons of the Board, Matthew’s detention was continued.                   

Matthew’s next detention review hearing was held on August 7, 2013. Board Member Karina Henrique, in departing from the earlier decision of the Board, authorized his release subject to conditions. The Board found, as clear and compelling reasons for this departure, the potential that Matthew’s future detention would be lengthy and that a substantial release plan had been submitted by him. She also found that the conditions adequately addressed the concerns that Matthew also  posed a danger to the public and was unlikely to appear in the future.

Accordingly, she ordered that Matthew’s parents were to post a $10,000.00 cash deposit, and that Matthew was to wear a GPS monitoring device during his release and that the monitoring was to be paid for by his parents. They were required to pre-pay for six months of monitoring to address the Minister’s concerns about the adequacy of their funds. The GPS monitoring was to ensure that Matthew complied with the condition that he remain under house arrest 24 hours a day, 7 days a week, save to attend weekly check-ins with Canada Border Services Agency and to attend hearings related to his immigration matter. Whenever he left his parents’ residence, he was to be accompanied by them. Finally, as a condition of his release he was not to have access to the Internet, nor any electronic devices that can connect him to the Internet, including computers or cell phones with a data plan.                        

The Board acknowledged the seriousness of the charges faced by Matthew but also noted they are allegations and unless he is convicted of those allegations, he is presumed to be innocent. Being satisfied with the release plan submitted by him, the Board ordered he be released from detention, subject to the conditions set out in its order.

The Ministry appealed that decision to the Federal Court of Canada in Ottawa. The decision of the appeal was made on September 5, 2013.

The Ministry’s representative argued that the Board erred in accepting the Respondent’s parents as bondspersons. He argued that they are unsuitable, for several reasons. First, since the parents defaulted on their guarantee in the United States, they are ineligible to act as bondspersons. Second, the Board unreasonably accepted that the parents could ensure compliance with the terms of the Respondent’s release. The representative argued that the conduct of the parents in accompanying their son to Canada shows that they support him and believe that he is not guilty of the charges against him in the United States and for this reason, the conduct of the parents demonstrates a willingness to forfeit property that has been posted as security and to help their son to evade a court trial in the United States.      

He then argued that the Board had unreasonably found that electronic monitoring adequately addressed the concerns of the Ministry; that being that Matthew was a danger to the public and unlikely to appear for proceedings in Canada. He submitted that the GPS monitoring plan was not sufficiently specific and accordingly or that reason, his release was unreasonable and that Matthew would still be a danger to the public and unlikely to appear for further  proceedings.  He also argued that that the release plan did not say that the parents were to stay home with their son at all times to ensure that he complied with the release conditions. He also complained that the plan was too vague with respect to the size of the monitored zone.

He finally argued that the Board could only estimate the length of future detention on the basis of the facts that exist at the time of the detention review hearing. It could be shorter thereby there was no necessity in freeing him at that particular time. 

Matthew’s lawyer argued that the Board’s decision met the standard of reasonableness in all respects. In the first instance, he acknowledged that while his parents are in default of a guarantee in a foreign jurisdiction, the prohibition in the Regulations does not apply since there is nothing in those Regulations to say that this law applies in respect of a default that occurred outside of Canada. 

Quite frankly, I don’t think that premise is valid. That is about as silly as arguing that if a person rapes a woman in the US, he will be accepted in Canada because there is nothing in the Regulations recognizing that particular rape because the Regulations refer to rape as a sexual assault and not as rape.  

Matthew’s lawyer said that in any event, the Board had evidence about the posting of security in the United States. As well, there was evidence about the money available to the parents in Canada to provide a substantial cash deposit. There was also evidence of a close relationship between Matthew and his parents.  Furthermore, there was evidence about the character, employment history and recent occupations of the parents that supports their suitability as bondspersons.

I am not convinced that last statement has any real merit. It must be remembered that despite Matthew’s parents having an employment history and their recent occupations, they helped him flee from United States justice and the fact that there is a close relationship between Matthew and his parents, increases the risk of him absconding again with their support.

The lawyer further submitted that the Board’s Order concerning the GPS monitoring was sufficiently specific. The zone is restricted to the parents’ residence and the police would be contacted if a breach of the monitored zone was detected.

Decision of the Federal Court 

Justice Heneghan said in his decision; “A detention review is not a de novo hearing (fresh new hearing) where a Board can make a decision without regard to prior decisions. Rather, a detention review is essentially a “fact-based decision to which deference is shown” and where a Board is to give “clear and compelling reasons” for departing from earlier decision to detain.”     

He said that the Board reasonably found that the parents could post security by means of a cash deposit. The prohibition in section 249(1)(a) of the Regulations does not apply. In the first place, there is no evidence that the parents had posted a “guarantee” in the United States. According to the Order of the United States District Court for the Middle District of Tennessee Nashville Division, dated May 22, 2012, as found in the Certified Tribunal Record, the Respondent was ordered released from detention. The Order provides, in part, as follows:

Ordered that the defendant shall be released pending trial conditioned upon the posting of security satisfactory to the Clerk of the Court in the two automobiles owned by the defendant’s parents and, within thirty (30) days of the entry of this Order, the equity in the defendant’s grandmother’s house in Indiana.

The judge said, “There is nothing in the terms and conditions attached to this Order spelling out the circumstances in which the authorities could realize (retrieve) the security posted and there is no evidence in the record to show if the American authorities have taken any steps to enforce the security posted. Furthermore, in my opinion, there is no evidence that the parents are in “default” of any guarantee.  In my view the security posted by the parents is not a “guarantee” according to Canadian Law. The Applicant (representative of the Ministry) has failed to show that the security is a “guarantee”, so his argument about the application of paragraph 48(1)(a) cannot succeed. Further, there is no argument raised concerning the capacity of the parents to enter a contract in the province of Ontario, certainly no evidence was filed in that regard. In any event, they are providing cash and no contract is required in that regard.

He also said, “I turn next to the argument about the Board’s finding as to the appropriateness and sufficiency of GPS monitoring. Having regard to the evidence that was before the Board on this issue, I am satisfied that this part of the decision was reasonable. A representative of the GPS monitor provider testified at the hearing. The Ministry’s representative availed of her opportunities to ask questions. It was clear from that evidence that the monitor would be programmed in such a way, with GPS utility, that a breach of conditions as to the Respondent’s (Matthew) movements would be communicated to the police.

“Finally, there is the issue whether the Board engaged in improper speculation about the length of continued detention. The Board acknowledged that, as of August 7, 2013, there is a potential for the Respondent to be in detention for a long period of time. It acknowledged that he was facing an admissibility hearing that had been postponed and for which a date would be set administratively.  It appears that the Board reasonably took this observation and the passage of time into account in making the decision on August 7, 2013, to release the Respondent from detention."

Overall, I am satisfied that the Board described clear and compelling circumstances for departing from the prior decisions. It reasonably accepted the parents as bondspersons in respect of a cash deposit. The Board reasonably assessed the suitability of electronic monitoring. It established a 24-hour curfew, effectively house arrest, together with the condition that the Respondent reside with his parents and notify the immigration authorities prior to any change of address. In the result, the application for judicial review is dismissed.

 Although the Immigration and Refugee Board found no credible evidence that he  committed any child pornography offences, he still has to face those charges in Tennessee and since he skipped his bail in that State, the Board rejected his refugee claim, He will be deported very soon. Meanwhile, the Canada Border Services Agency has refused to return to him his USB thumb drives that contain particulars re his association with Anonymous and WikiLeaks.. He  said that he wants those items back  to so that they can be used as part of  his defence, however, he says that he isn't overly concerned that the American authorities will decipher them because according to him, if the authorities in the US attempt to decipher them, the information inside the drives will be destroyed.  

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