THE DEPORTED
Hundreds of B.C. criminals without citizenship shipped out
Legislation that allows deportation of non-Canadian criminals who have been sentenced to six months or more — including those who came to Canada as children — is being challenged by the B.C. Civil Liberties Union, which is intervening in the deportation case of a former Hells Angels associate who has lived here since he was 10 years old
Since Len Van Heest was deported to the Netherlands on March 6, he calls his mom on Vancouver Island every morning to find out how his favourite teams are faring.
The Raptors. The Penguins. The Blue Jays. He wants all the results.
The ritual has helped keep the 59-year-old with bi-polar disorder focused and stable despite the upheaval in his life that came when he was sent back to a country he left as a baby.
His Victoria lawyer Peter Golden is still hopeful Van Heest will be allowed to return to B.C. despite a string of convictions for uttering threats, assault and mischief related to his mental illness.
A nine-month sentence he received triggered his removal from Canada. His fate now rests in the hands of Immigration Minister Ahmed Hussen.
Van Heest, who doesn’t speak Dutch, is living in a Salvation Army shelter in Amsterdam.
“Len, from what I understand, was really scared when he got off that airplane. He was perspiring. He was agitated. The person that (Canada Border Services Agency) said was going to give him a room — a family friend — was in Australia,” Golden said.
“Len’s passion and one of the things that has kept him in good shape is that he follows sports. So he phones his mom every morning to get the scores. Part of what has kept his stability for the last few years is this routine.”
Van Heest is one of hundreds in B.C. with criminal records deported under stricter rules brought in by the former Conservative government in June 2013.
The 2013 legislation means any permanent resident sentenced to six months or more can be deported with fewer avenues of appeal. The old threshold was a two-year court sentence and more chances to appeal.
CBSA statistics show that the new rules have had the intended effect.
The total number of criminals deported from the Pacific region in 2011, 2012 and 2013 was 174. Over the subsequent three years, 276 people were deported from the region for their criminal history.
Some have been high-profile gangsters like Barzan Tilli-Choli, of the United Nations gang, who was sent back to Iraq in January after serving almost eight years for plotting to kill the Bacon brothers. He came to B.C. as a teen in 1999.
Others, like Van Heest, suffer from serious mental health issues that contributed to their criminality.
Many of those affected have been in Canada since early childhood, but their caregivers never obtained citizenship for them.
“Somebody dropped the ball, whether it was the parent or the state if they ended up being a ward,” Golden said.
In Van Heest’s case, his family thought he was automatically a Canadian.
“By the time he was an adult and could have (applied for citizenship), he couldn’t because he had the (criminal) record and he was also dealing with a mental illness that was untreated,” Golden said.
Critics say the new rules are unforgiving and don’t look at the individual circumstances of those ordered out of Canada for criminality.
Conservative MP Michelle Rempel said she supported the legislation in 2013 and still supports it today. And she thinks the majority of Canadians do, too.
“The primary responsibility of legislators is to keep the Canadian population safe, so that’s really … why we made these changes in 2013,” she said.
Focusing on any specific case, including Van Heest’s, is the wrong approach, Rempel said.
“Where I think we go off the rails is when we look at one case in a vacuum, or talk about taking away the personal responsibility component from criminal actions.”
CBSA communications officer Kristine Wu said the agency places “the highest priority on removal cases involving national security, organized crime, crimes against humanity and criminals.”
“Everyone ordered removed from Canada is entitled to due process before the law,” she said. “Our position is clear: Once all avenues of recourse are exhausted, the person must leave Canada or be removed.”
One of those the CBSA is currently trying to deport is longtime Kelowna resident David Roger Revell, a former Hells Angel associate convicted in 2008 of conspiracy to traffic cocaine after a massive RCMP undercover operation targeting the biker gang. He was sentenced to five years.
Then in 2013, he pleaded guilty to two assault charges in a domestic violence case involving a former girlfriend and was sentenced to two years probation.
Revell, a father and grandfather who now works in Alberta, was born in England and was brought to Canada as a 10-year-old in 1974. Like Van Heest, he never got Canadian citizenship. Unlike Van Heest, his convictions are unrelated to mental illness.
Revell argued to the Immigration and Refugee Board last year that he never would have pleaded guilty in the assault case if he had known it would lead the CBSA to renew a review of his admissibility that had been on hold after the 2008 conviction.
“According to Mr. Revell, he pled guilty to simply put an end to proceedings that were requiring him to travel back and forth from Fort McMurray to Kelowna,” Immigration and Refugee Board member Marc Tessler noted in a July 2016 ruling. “According to Mr. Revell, if he had received a warning letter, he would never have pled guilty.”
Tessler agreed with Revell’s evidence that his deportation to England would have a “profound” impact on him.
“He has lived in Canada for 42 years and has only known Canada as home,” Tessler said.
But Tessler rejected Revell’s claims that his Charter rights had been violated and ordered him deported.
Revell has now asked the Federal Court to review Tessler’s decision. A hearing is set in Vancouver for May.
Revell’s lawyer Lorne Waldman said he plans to again argue that his client’s Charter rights would be violated by his deportation and that “Canadian jurisprudence should begin to acknowledge that it is just unacceptable to remove someone from the only country he’s ever really known.”
“The issue now that is coming before the court is: Are there circumstances in which it might be a violation of a person’s right to life, liberty and security of person to send that person away from a place where he has lived most of his life?”
Waldman, who is based in Toronto, said he has been inundated with calls from people living in Canada for decades who now find themselves in a similar situation to Revell and Van Heest.
“What they’ve done is they have significantly increased the number of long-term permanent residents that are being deported because the threshold now is so low,” he said. “It has had a fairly dramatic impact and that’s why we are seeing such a large number of cases now moving forward.”
On March 15, the B.C. Civil Liberties Association was granted intervener status in Revell’s case.
Lawyer Caily DiPuma said the association got involved as an opportunity to challenge a 1992 Supreme Court of Canada decision called Chiarelli that says deporting a permanent resident with a criminal record doesn’t violate the principle of fundamental justice guaranteed in the Charter.
“We think that that case was unfairly limiting the individual rights of persons in deportation contexts and that it should he revisited by the Supreme Court of Canada. This case provides an opportunity to the court to reconsider those issues,” DiPuma said.
She said there must be more discretion to look at the individual circumstances in each deportation case.
“So we are not saying in any given case that a particular outcome is desirable, but that the deportation regime ought to enable the individual to argue the impact on their Charter rights,” she said.
The possibility of deportation is now routinely raised during sentencing hearings.
In December 2015, a lawyer for Sophon Sek, 37, who was sentenced to a year for helping the Surrey Six killers get into the apartment where they killed six men, noted that his client would likely be deported once his sentence was done.
Sek, who came to Canada from Cambodia as a four-year-old, has recently been transferred into immigration custody to await a deportation hearing scheduled for next month.
Another gang associate fighting a deportation order is Bi Dong (Adam) Lam, who was brought to Canada from Vietnam while still a toddler.
He was told he would have to leave Canada because of a 2014 conviction for possessing a firearm in violation of a court order and a 2007 break and enter conviction stemming from a Langley home invasion.
Former Abbotsford gang associate Jimi Sandhu argued against his deportation to India last year on humanitarian and compassionate grounds — he came to Canada as a child of seven to live with his grandmother.
He said his legal problems started after he fell in with the wrong crowd in the ninth grade. He later pleaded guilty to violent assaults in 2010 and 2012. In the first case, he got a 31-day sentence, and in the second, 23 days in jail. A 2014 murder charge was later dropped.
Despite Sandhu’s sentences being below the six-month mark, he was deported after the Immigration and Refugee Board found he had a pattern of negative behaviour over many years and showed no remorse for his crimes. He was returned to the Indian sub-continent last year.
Ujjal Dosanjh, a former federal Liberal cabinet minister, has publicly appealed for the immigration minister to intervene in Van Heest’s case.
Lowering the threshold for deportation was the wrong thing to do, Dosanjh said.
“I think that if there is a guy who’s lived here for 40 or 50 years, if he is a criminal, he is our criminal. We made him what he is. If he hasn’t killed anybody and isn’t a traitor or a terrorist, we have a moral and ethical obligation to see if there is anything redeemable about the person, and make sure they remain a part of Canadian society,” Dosanjh said.
Green Party MP Elizabeth May said what happened in Van Heest’s case “is heartbreaking and really not what Canadians expect from their government.”
She has been lobbying on his behalf in Ottawa and maintains contact with his mother Trixie.
“He spent nine months in jail. That is definitely paying his debt to society. He is not a mastermind criminal. He is someone with a mental health issue,” May said.
She said the changes to the deportation laws have shifted the focus to “deporting people as fast as possible.”
“If we are deporting people to a country where they don’t speak the language, they have no connections, there is something wrong with that,” she said.
Golden says one of the most disturbing aspects of Van Heest’s case is that the CBSA deported him despite the fact that his application to remain on humanitarian and compassionate grounds was still under review by an immigration official.
“It’s perverse that you have the Minister of Public Safety through the Canada Border Services Agency saying we’ve got to get this guy out of here, and a senior immigration officer representing the Minister of Immigration saying we are considering your application,” Golden said.
He is hopeful the application will be successful.
“Anybody who hears Len’s story is sympathetic. They shake their heads,” Golden said. “We should be able to get Len back. A lot of people are working hard to do that.”