Wednesday, 22 April 2015

Why was a convicted sex offender born in the US permitted to move into Canada?                         

This article should be of interest to anyone wishing to enter Canada.

Normally, convicted sex offenders from other countries who are not Canadian citizens would not be permitted to enter Canada since Canada doesn’t permit entry to Canada for such offenders from other countries. However, in the case I am writing about, there was a legal exception made for a sex offender from the United States.  I will get into that in a moment.

Paul Latina was born in the United States.  In March of 2003, Latina was convicted of a sexual offence in relation to a child in the state of Colorado and, as part of his sentence, he was ordered to participate in the state sex offender registration program. Subsequently, in 2011 he moved to St. Louis County, Missouri, where he completed his sex offender registration requirements with the St. Louis County Police Department. 

In late March of 2013, Latina was caught, through an undercover police operation, using the internet to attempt to lure someone he believed to be a 14-year-old female for sexual purposes.  He displayed his penis on the internet to the person he thought was under 14. As part of the police investigation in relation to this offence, a search warrant was executed at his residence, and he was discovered to be in possession of child pornography.  As a result, in early April of 2013, he was released from custody on bail while awaiting trial on charges of: (1) failing to register as a sex offender; (2) attempted sexual misconduct with a child under 15 years of age; and (3) possession of child pornography.        

While he was living in the United States for the decade between 2003 and 2013, he identified himself to law enforcement personnel, as a United States citizen.

Previously, he applied for Canadian citizenship in June 2012.  Strange as it may seem, he could legally make such an application because although he was born in the US, his mother who was in the US then was also a Canadian citizen and children born of Canadian mothers are automatically citizens of Canada. In April of 2013, he was notified by email that he had been granted Canadian citizenship.        

Twice in May of 2013, Latinas attended at the St. Louis County, Missouri Police Department and met with Detective Whelehon for the purpose of updating his sex offender registration documents.  On each of these two occasions, he indicated, in writing, that he possessed dual American-Canadian citizenship.

On July 16, 2013, acting on information from a confidential informant, the police obtained another search warrant for the Latina’s residence.  Again, this search revealed that he was in possession of a significant quantity of child pornography.  Warrants were issued for his arrest.  The arrest warrant was only good in the United States.                                                                

Latina knew this and on July 17, 2013, within hours of the execution of the search warrant, he entered Canada via the Blue Water Bridge in Sarnia, Ontario.  The Canadian Border Services Agency (CBSA) officer at this location noted only that the vehicle entering Canada contained one American resident who intended to stay in Canada longer than 48 hours.  At some point during his flight to Canada, Latina had cut off the electronic bracelet that he was required to wear as part of his judicial interim release order in the United States.  Leaving the United States was also in violation of the terms of his bail.

On July 25, 2013, Jared Corn, an Intelligence Analyst for the Missouri State Patrol, contacted Martin Davies, a CBSA officer in Calgary, Alberta, in connection with the Latina’s flight to Canada.  Officer Corn advised Officer Davies that the Latina was a “US citizen and resident of Missouri,” who had a significant criminal record for “child sex offences” and was a “registered sex offender” in the United States. He also advised Officer Davies that Latina had made comments about going to live in Canada to avoid the United States sex offender registry.  He also provided Officer Davies with certain details about Latina, including his date of birth, his social security number (SSN), his Federal Bureau of Investigation (FBI) number, and details about his motor vehicle.

Initially, the American authorities did not advise the Canadian authorities about Latina`s claim of dual citizenship.  The only American police officer who knew about his dual citizenship was Detective Whelehon of the St. Louis County Police Department.  Indeed, the Canadian authorities thought that Latina was actually inadmissible to Canada and could be processed and deported back to the United States.  However, Officer Davies determined, also on July 25, 2013, that a Canadian passport had never been applied for, or issued to, Latina. I should point out that a Canadian citizen doesn`t need a passport to remain in Canada but he or she does need a passport to enter Canada from the US or anywhere else unless he or she has an enhanced driver`s licencc and is entering Canada from the United States which Latina didn’t have. Latina had an American passport so that is how he got into Canada.

As a result of receiving this information, on July 25, 2013 the CBSA entered a nationwide “lookout” for Latina and his motor vehicle in Canada.  This CBSA “lookout” indicated that, if Latina was encountered, there should be a “progressive secondary examination” with a “focus on child pornography” and an examination for “immigration admissibility” as Latina was “believed to be criminally inadmissible” to Canada.

As a result of receiving this information, on July 25, 2013 the CBSA entered a nationwide “lookout” for Latina and his motor vehicle in Canada.  This CBSA “lookout” indicated that, if Latina was encountered, there should be a “progressive secondary examination” with a “focus on child pornography” and an examination for “immigration admissibility” as Latina was “believed to be criminally inadmissible” to Canada.

On August 1, 2013, Mark Ellis, an Intelligence Officer with the Southern Ontario Region of the CBSA, sought further information from the American authorities in relation to Latina.  He wanted to know the charges facing Latina in the United States, and whether they had any information as to where Latina might be headed in Canada.  Officer Ellis indicated that he had an “alert” ready to be issued, but he wanted to ensure the accuracy of his information.  Dave Wilborn, a Senior Inspector and Sex Offender Investigations Coordinator for the United States Marshals Office in Missouri, provided the information about the charges against Latina, and indicated that he was unaware of Latina having any family or friends in Canada.

On August 15, 2013, the United States authorities learned that Latina was in the Toronto area, as he had used his bank debit card a couple of times in that location.  They passed this information along to the Canadian authorities, and sought their assistance in the apprehension of Latina

 In the result, on August 16, 2013, the Inland Enforcement unit of the CBSA issued an immigration warrant for the arrest of the applicant.  This warrant indicated that, pursuant to s. 55(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), there were reasonable grounds to believe that Latina was inadmissible to Canada, was a danger to the public, and was unlikely to appear for an admissibility hearing.

At 1:40 p.m. on August 16, 2013, Latina was arrested in Milton, Ontario on this warrant.  At the time of his arrest, Latina was still in possession of his United States passport.  When Latina spoke to a CBSA official at 2:55 p.m., and was told that he was being detained for an admissibility hearing, Latina replied that he was a Canadian citizen and he produced his long form citizenship document.  At 3:15 p.m., after it was determined that this citizenship document was legitimate, Latina was released from custody and given a taxi ride home.

Subsequently, prosecutors in St. Louis, Missouri immediately sought the Latina’s extradition from Canada, and requested a provisional arrest warrant under the Extradition Act, S.C. 1999, c. 18.  The “Urgency Statement” provided by the Missouri Assistant Prosecuting Attorney on August 16, 2013, noted that Latina was released from custody “when it was discovered that he was also a Canadian citizen,” and that, accordingly, the authorities in the US knew that Latina was aware that he was being pursued by the American authorities and might try to avoid apprehension.   The provisional warrant was issued and, at approximately 9:55 a.m. on August 17, 2013, Latina was again arrested.  Latina has so far remained in custody since that arrest pending his extradition hearing.

The legal principles that govern an application to stay (stop) extradition proceedings are not controversial, and were reiterated by the Court of Appeal for Ontario recently stated in the case of United States of America v. Lane. Those principles are essentially as follows:

While an extradition judge does not have an inherent jurisdiction to consider issues under the Charter of Rights, an extradition judge does have the statutory jurisdiction to deal with such issues pursuant to s. 25 of the Extradition Act, provided that the Charter issues “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.”  See United States of America v. Kwok, a Supreme Court of Canada case heard in 2001.  In other words, where a stay of the extradition proceedings is sought as a remedy for an alleged “abuse of process” that has resulted in a Canadian Charter  violation, the extradition judge has jurisdiction to determine the issue where there is some “nexus” (connection) between the conduct alleged to constitute an abuse of process and the committal hearing itself.

Moreover, based upon the existing jurisprudence, the necessary “nexus” between the alleged abusive misconduct and the committal hearing will be found to exist in at least the following three circumstances: (1) where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state, as in United States of America v. Khadr; (the Canadian youth charged by the Americans with terrorism) (2) where threats or inducements are made by state authorities in an effort to try to force the fugitive sought to abandon the right to a committal hearing, as in United States of America v. Cobb, a Supreme Court of Canada case heard in 2001 or (3) where the committal hearing itself was the result of misconduct by the requesting state, as in United States of America v. Tollman,  a Superior court case heard in 2006.

When the Requesting State (in this case, the United States) is a party to judicial proceedings before a Canadian court, it  is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance.  Even aside from any claim of Charter protection, litigants (such as Latina) are protected from unfair, abusive proceedings through the doctrine of abuse of process, which bars litigants – and not only the State – from pursuing frivolous or vexatious proceedings, or otherwise abusing the process of the courts.

Nevertheless, as the Supreme Court of Canada re-affirmed in R. v. Babos, (a Supreme Court of Canada case heard in  2014) that it will only be legally appropriate to stay the proceedings where: (1) there has been prejudice to the accused’s right to a fair trial or the integrity of the justice system, that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; (2) there is no other alternative remedy reasonably capable of redressing the prejudice; and, where (after steps one and two) there is still uncertainty over whether a stay is warranted, (3) where the court concludes that the proceedings should be stayed after balancing the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.

There are two types of prejudice that can result in the granting of a stay of proceedings, namely: (1) prejudice to the accused’s right to a fair trial; and (2) prejudice to the integrity of the justice system.  Misconduct which compromises trial fairness is the “main category” of the abuse of process that will lead to a stay of proceedings, whereas misconduct that risks undermining the integrity of the judicial process is the “residual category” of abuse of process that will lead to a stay of proceedings.  The legal test is the same for both categories, but the test will often play out differently depending upon which category is invoked. 

In Latina’s case, there was no allegation of any prejudice to his right to a fair trial held in the United States.  The request for a stay of proceedings in this case was based entirely upon the contention that the alleged misconduct of the various state authorities has caused prejudice to the integrity of the justice system such as invoking any further accusation  of prejudice.  Accordingly, the key issue in the present case was whether the state authorities had engaged in misconduct that was so offensive to societal notions of fair play and decency that to permit an extradition hearing (and potentially a criminal trial) to proceed would contravene fundamental notions of justice and undermine the integrity of the justice system. 

In other words, the judge felt that it must be determined whether the alleged state misconduct had been so egregious and harmful to the integrity of the justice system that having an extradition hearing and trial even when they are entirely fair proceedings, would suggest that the justice system condones misconduct that offends society’s sense of fair play and decency. Subsequently, a stay of proceedings is reserved for only those clearest of cases where the very high threshold for abuse of process is reached.  It will be only in exceptional or “relatively very rare cases that state misconduct will be considered so egregious that the mere fact of going forward in the light of it will be offensive.        

Latina’s lawyer argued that the conduct of the American and Canadian authorities constitutes an abuse of process and/or a violation of his rights guaranteed by section 7 of the Charter.  More particularly, the lawyer argued: (1) that the American authorities intentionally withheld information from the Canadian authorities regarding his Canadian citizenship, so as to improperly manipulate immigration deportation proceedings and circumvent the necessary extradition proceedings; and (2) that the Canadian authorities negligently failed to conduct an independent investigation into his client’s admissibility into Canada, and thereby permitted immigration proceedings to become no more than disguised extradition proceedings.

The lawyer further argued that while some international cooperation between the American and Canadian authorities is perfectly appropriate, it must be premised on good faith on both sides of the border, and that immigration proceedings must only be instituted for proper purposes.  He further contended that, in this case, the American authorities declined to provide the Canadian authorities with a very important piece of information, namely, that he was a Canadian citizen.  This was his primary allegation of abuse of process.  Further, the Canadian authorities failed to exercise proper diligence in their own investigative efforts because if they had conducted the proper database search, they would have themselves discovered that he was a Canadian citizen.  This negligence by the Canadian authorities subsequently aggravated the abuse of process by the American authorities. 

However, he also argued that even if the Canadian authorities operated in good faith, the extradition proceedings should still be stayed as the failure by the American authorities to disclose his Canadian citizenship so offends society’s sense of fair play and decency that it undermines the integrity of Canada’s judicial system.

The government’s lawyer argued on the other hand, that the lawyer for Latina had failed to demonstrate that this was one of the clearest of cases of abuse of process warranting the drastic remedy of a stay of proceedings.  More particularly, the government lawyer contended: (1) that the Latina had suffered no actual prejudice as a result of any state action; (2) that his brief period of custody under the immigration warrant, before it was discovered that the applicant was a Canadian citizen, does not prejudice the integrity of the justice system, especially given that the police authorities – both in the United States and in Canada – acted in good faith throughout this case; and (3) that the great public interest in an extradition hearing (and potential criminal trial) on the merits of the case requires that the proceedings not be stayed, but be allowed to continue.

Latina’s lawyer had said earlier that the American law enforcement authorities were actively engaged in improperly seeking his return to the United States through immigration proceedings, while at the same time dishonestly concealing the fact of his Canadian citizenship from the Canadian authorities. 

In my view, there was no credible or persuasive evidence in support of that position.  Admittedly Latina had advised one of the Missouri police officers about his sex offender registry contact in St. Louis County and that he had dual citizenship in the United States and Canada, there was no evidence that this information was initially passed along to the other American authorities more actively engaged in seeking the arrest and return of the applicant. 

Further, the evidence suggested that the American law enforcement authorities were skeptical of this claim, and doubted that Latina really had Canadian citizenship.  In any event, I am convinced that the evidence did not establish that the American authorities were generally aware of the applicant’s dual citizenship when they were seeking his deportation, and were deliberately keeping this information from the Canadian authorities.  

That was also the position of the judge hearing Latina’s appeal.

The Judge said, “As I have indicated, in my opinion the applicant (Latina) has failed to establish that the American authorities: (1) knew the applicant was a Canadian citizen; and (2) intentionally tried to conceal this fact from the Canadian authorities, in an effort to have the Canadian authorities unlawfully deport him back to the United States.”  unquote His reasoning was based on the following;

For at last the ten year period between 2003 and 2013 the applicant lived only in the United States.  Further, during this period of time the applicant only identified himself as being an American citizen.

The applicant didn’t say that had been granted Canadian citizenship until April of 2013.  This took place after his arrest on his other pending criminal charges in the United States (i.e. the charges commenced in March of 2013 for failing to register as a sex offender, attempted sexual misconduct with a child under 15 years of age, and possession of child pornography).

When the applicant crossed the border into Canada on July 17, 2013, shortly after the police executed their second search warrant at his Missouri residential premises, he was driving a vehicle bearing a Missouri state disabled veteran’s license plate, and he identified himself to the Canadian border authorities as an American.

In late July of 2013, the American police authorities confirmed that that the applicant had never been issued a Canadian passport, but subsequent correspondence, in early August of 2013, suggested that they suspected that the applicant may have had another passport under a false name, as they believed that the applicant had been using a false name or alias in Canada.

Correspondence emanating from the American police authorities in early August of 2013 suggested that they were unaware of any family or friends that the applicant might have in Canada.

Police reports that the American police authorities were working with in relation to the applicant, listed the applicant’s citizenship as only an American.  For example, the National Crime Information Centre maintained by the FBI in the United States, listed the applicant’s citizenship as only an American.

In a Memorandum dated August 16, 2013, written by the St. Louis County Assistant Prosecuting Attorney, providing an “Urgency Statement” about this case, and seeking the apprehension of the applicant, the prosecutor indicated that, following the execution of the search warrant at his residence, the applicant “disappeared” from the St. Louis County area, and it was believed by law enforcement that he “may attempt to enter Canada as he purportedly claimed to be a Canadian citizen. This language suggested that the American law enforcement authorities either did not believe the applicant’s “claim” of Canadian citizenship, or were at least very skeptical as to the truth of this dual citizenship claim.

Latina testified that when he moved from Colorado to Missouri, he was still required to comply with his sex offender registry obligations, and report quarterly to the Missouri State Highway Patrol.  Indeed, he produced two sex offender registration documents which demonstrated his efforts to comply with his obligations.  First, he produced a “90 day” sex offender registration document, dated May 1, 2013, that was signed by him and Detective Whelehon, and that indicated his citizenship was “US/Canada.”  Second, he produced a “vehicle change” sex offender registration document, dated May 20, 2013, that was also signed by him and Detective Whelehon, and which also indicated that his citizenship was “US/Canada.”  Latina testified that in May of 2013, the he told Detective Whelehon about his dual American/Canadian citizenship.    

Latina also testified, that he had told Detective Whelehon about his acquisition of Canadian citizenship in early April of 2013.  He explained that within a few days of receiving his Canadian citizenship document in the mail, he arranged to meet with Detective Whelehon to make a change to his registration.  According to Latina, during this meeting, he showed the officer his official Canadian citizenship form, and told the officer all about how he had secured his dual citizenship through his mother who was a Canadian citizen.  He also testified that he told Detective Whelehon that he had family in northern Alberta, and talked to him about going there one day for a visit. 

Latina testified that while they completed a registration form noting this change of his citizenship status, he was unable to produce that document, explaining that he must have either left it in his home in Missouri, or lost the document.  He then testified that while he realized that there was no legal requirement that he advise the officer of his citizenship change, he wanted to provide this information about his changed citizenship status in any event.

The judge in his ruling, said in part; “I do not accept the testimony of the applicant about his alleged meeting with Detective Whelehon in early April of 2013.  Indeed, I find that there was no such meeting.  While the applicant was able to produce his other sex offender registration documents, he was unable to produce any documentation to support the alleged April meeting.  If there had been such an April meeting, during which documentation was created noting his changed citizenship status, the applicant should have been able to produce that supporting documentation.  He did not.  I find that the applicant invented this earlier meeting to artificially improve his assertion that the American authorities were well aware of his Canadian citizenship and his family connections to Canada.  Significantly, while the applicant maintained in his testimony that he had extended family in Alberta, he could not name a single family member, or even the name of the town where they allegedly resided in Alberta.” unquote

The only American police official who had been provided with information about the applicant’s Canadian citizenship was Detective Whelehon.  In May of 2013, during the course of two meetings with Detective Whelehon, which took place in connection with the applicant’s sex offender registry obligations, the applicant completed documentation that revealed, among other things, that the applicant had a dual “US/Canada” citizenship. 

The judge said that Detective Whelehon had only a slight involvement in any of the international law enforcement discussions that took place between the American and Canadian authorities in July and August of 2013 regarding Latina.  However, Detective Whelehon did not pass on, to the Canadian authorities, his knowledge of the Applicant’s dual citizenship. 

The judge also said, “His failure in this regard was not, however, as a result of any bad faith or improper motive, or any deliberate attempt to deceive the Canadian authorities.  In my view, it is entirely likely that this information was not passed along by Detective Whelehon, a local St. Louis County police officer, because he did not appreciate its significance to the potential deportation or extradition of the applicant from Canada.  There is certainly no evidence that Detective Whelehon was well versed in the legal nuances (distinctions) of international obligations concerning immigration proceedings versus extradition proceedings.” unquote

He then said, “Accordingly, I decline to infer any bad faith or improper motive to Detective Whelehon with respect to his failure to expressly advise the Canadian authorities, in his limited contact with them, that the applicant had advised him that he had dual “US/Canada” citizenship.  I am even less inclined to conclude that the American law enforcement authorities more generally were possessed of any bad faith or improper motives in seeking the return of the applicant.  There is no evidence that any other member of the American authorities was even aware of the applicant’s dual citizenship.  In the result, I cannot conclude that the American authorities were covertly trying to have the applicant improperly deported from Canada notwithstanding their knowledge of his Canadian citizenship, by keeping their knowledge from the Canadian authorities.” unquote

It appears that there wasn’t any evidence that the American authorities knew that individuals with dual American/Canadian citizenship could not be deported from Canada to the United States.  Quite frankly, they should have known that. Nor was there any evidence that the American authorities thought that such dual citizenship could not be easily and quickly discovered and confirmed by the Canadian authorities.  That was foolishness on their part.   Nor is there any evidence that the American authorities thought that the Canadian authorities would simply quickly deport the applicant, purely on their instructions, and without any independent investigation of their legal ability to do so. 

In the absence of such evidence, it is difficult to understand how any of the American authorities could realistically have thought that they might be able to dupe the Canadian authorities into immediately illegally deporting a Canadian citizen. What they should have done is contact the nearest Canadian consulate and ask for advice on such matters.

In the present case, Latina was, in fact, released from custody just 95 minutes after his arrest on the immigration warrant when the Canadian police authorities discovered from Latina that he was a Canadian and were they were able to confirm that Latina actually was a Canadian citizen.  However, even had his citizenship status not been discovered with such dispatch, it would inevitably have been eventually discovered at some point early in the deportation process and would have similarly resulted in the timely release of Latina.  The inevitable release of him following his arrest on the immigration warrant, upon discovery of his Canadian citizenship, was hardly to the strategic advantage of the American law enforcement authorities.  Rather, it only provided Latina with an opportunity, at least potentially, to escape apprehension, realizing that his specific Canadian location had been discovered by the American law enforcement authorities who were hunting for him and trying to have him arrested and detained.

The judge summed up with the following statement:

“In summary, based upon all of the evidence in the present case, I am simply not satisfied that the American authorities generally knew of the applicant’s recently bestowed Canadian citizenship and sought to deliberately conceal his Canadian citizenship from the Canadian authorities, or were in any other way engaged in improperly seeking the applicant’s return to the United States through deportation proceedings.  While Detective Whelehon was certainly aware, in May of 2013, that the applicant claimed to have dual citizenship, it is unlikely that Detective Whelehon understood the significance of the information, and the evidence suggests that the American authorities always remained skeptical about the accuracy of this claim.  Moreover, while failing to immediately alert the Canadian authorities as to this claim of dual citizenship, I am satisfied that the American authorities were not intentionally seeking to hide relevant information from the Canadian authorities.” unquote

The judge also said, “The evidence does not establish that the Canadian authorities acted in bad faith in this case and/or were engaged in an abuse of process.  Indeed, in my view, the evidence establishes that the Canadian authorities acted, at all times, in good faith in their investigation in relation to the applicant.”  unquote

In any event, the impugned conduct of the Canadian authorities cannot fairly and accurately be described as an abuse of process or a violation of the applicant’s rights under section 7 of the Charter.

The judge concluded that in the absence of an order staying the proceedings, the evidence in this case that Paul Latina was in possession of child pornography is such that there must be an order committing him for extradition.

At the time of this writing, he is still in Canadian custody. When he is turned over to the American authorities, he will be facing a very heavy sentence. It will be years before he is finally released. While he is in prison, he will probably be held in protective custody since the other inmates in the general population of the prison would have other plans for him. I doubt that he will be permitted to remain in the United States even though he is a citizen there. The Americans may choose to deport him to Canada where is a Canadian citizen. If he is returned to Canada, he will be registered as a sex offender and since he was charged in the US of attempted sexual misconduct with a child under 15 years of age when he contacted someone he thought was a child instead of the adult police officer he was communicating with, he may be on that list for the rest of his life.

No matter where he lives, he will have a very hard time getting a job if any potential employer asks him for references from previous employers. 

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