Toronto Star

Court fee mix-up may lead to deportatio­n

Unsigned document leaves Peterborou­gh man in limbo as he waits to receive pardon

- JIM RANKIN STAFF REPORTER

PETERBOROU­GH— Oniko Bailey may soon have to say goodbye to Canada, his partner and their young son because of a bid for a pardon derailed by an apparent mix-up over a $50 court fee.

In what appears to be a court clerical glitch, Bailey, who was convicted in 2009 of assault during a breakup with a girlfriend, was never asked to sign an acknowledg­ement that he had to pay a $50 victim surcharge fee.

The 28-year-old, who came to Canada from St. Vincent at the age of 17 and worked as an undocument­ed carpenter until his arrest, had no idea about the fee until he applied last year for a pardon.

He’d waited a required five years to apply and, in all likelihood, he would have qualified. A pardon would have weighed in his favour in an ongoing immigratio­n sponsorshi­p applicatio­n.

Bailey learned of the unsigned document and outstandin­g fee through Pardons Canada, the company he hired to clear his record, and discovered the countdown on his five-year wait for a pardon had never started.

The Star has viewed Bailey’s surcharge fee document. It is unsigned.

Andrew Tanenbaum, program director at Pardons Canada, told the Star such documents are usually signed at sentencing and that the sentence is not considered complete until the fee is paid.

If a pardon applicant has “been out of trouble for five years and paid all their fines and there’s no outstandin­g fines, they should be able to get it,” he said.

Bailey complied with all other conditions placed on him at sentencing. Other than the domestic incident, he has no criminal record.

When Bailey learned of the fee last year, the $50, he said, had gone up to $100, which he promptly paid. He must now wait four more years to make a new full pardon applicatio­n.

On a recent cold winter afternoon, Bailey’s son arrived home from kindergart­en to the Peterborou­gh house he shares with Kareena Jessup, his common-law wife. The boy trailed him around the house.

For the second time in two years, he’s told his son that he has to leave.

Last year, after a “guarantee” from a Canada Border Services Agency (CBSA) officer that Bailey was heading back to St. Vincent, he and his partner broke the news to the boy.

Bailey got his affairs in order and bought a plane ticket. When a storm swamped the Caribbean nation and affected the government’s ability to supply emergency travel documents, the deportatio­n date came and went.

This time, “I didn’t want to tell him,” said Jessup, 32. When she did, the boy’s anxiety problems returned.

“He’s stuck on wanting to go with him” to St. Vincent, said Jessup. “I just try to change the subject.”

Bailey, who in Canada learned to be a carpenter, went from being an undocument­ed worker to one with a work permit. He paid taxes and helped build hotels, gas stations and big box stores and when the permit ran out, so did health coverage.

One hand was mangled on the job. It would cost thousands to have it repaired. He faces a similar bill to fix an eye problem that is slowly causing him to lose sight in one eye.

Any money he does have has been spent on legal, immigratio­n consultati­on and other fees in bids to stay in Canada. He estimates it has cost close to $50,000 so far.

For years, on the second Wednesday of every month, he has reported to immigratio­n officials as required and says he has abided with every request made of him.

Bailey was convicted of assault and assault with a weapon in 2009 after a former girlfriend told police he took a phone from her and tried to slit her throat with a knife. Bailey denies both the allegation­s and says the two had a verbal argument during a breakup.

He spent six nights in jail — two awaiting bail on the criminal charges and four to get out of an immigratio­n hold. He was sentenced to time served and placed on a year of probation.

The incident led to his undocument­ed status being revealed. But he later obtained a work permit. In late 2009, he and his partner had a boy. His work permit has since expired and a subsequent applicatio­n was denied.

He failed in a bid to be accepted as a refugee and unsuccessf­ully appealed his conviction. An immigratio­n sponsorshi­p applicatio­n is doomed because of his criminal record.

Bailey’s latest lawyer, Osborne Barnwell, is looking into ways to have him stay, including applying for a conditiona­l pardon and appealing on compassion­ate grounds in a spousal sponsorshi­p applicatio­n.

Barnwell says Bailey “ought to have been told” about the surcharge and asked to sign the document.

“Somebody made a mistake,” says Barnwell. “In a case like this, he may qualify (to stay), because of what I call the official error and because there is so much at stake: his child, his family structure.”

The measures may not stave off deportatio­n.

Barnwell, in a letter to the CBSA, outlined a number of allegation­s and demanded it investigat­e the handling of the case. In response, a CBSA director with the enforcemen­t and intelligen­ce operations unit on Airport Rd. in Mississaug­a wrote that a “thorough” review had been conducted. The CBSA officer on Bailey’s case “acted in good faith,” and found allegation­s of misconduct “are not supported.”

The CBSA official explained the agency knew of Bailey’s attempt at getting a full pardon, but noted that a conditiona­l pardon, for CBSA’s purposes, does not “clear criminalit­y and therefore does not positively impact a sponsorshi­p applicatio­n.”

In an email to the Star, spokeswoma­n Anna Pape said the CBSA “would not and is unable to provide a full guarantee” that a removal will take place on a certain date. Officers have the discretion to defer removals in “exceptiona­l circumstan­ces,” said Pape. But deferrals are not “designed to delay removal indefinite­ly or permanentl­y.”

Bailey has little left in St. Vincent to call home and few employment prospects, says Jessup.

“He can make a lot of himself in Canada.”

“In a case like this, he may qualify (to stay), because of what I call the official error, and because there is so much at stake: his child, his family structure.” OSBORNE BARNWELL LAWYER FOR ONIKO BAILEY

 ?? JIM RANKIN/TORONTO STAR ?? Oniko Bailey is facing a deportatio­n order for the second time. After applying for a pardon, the 28-year-old discovered he had an outstandin­g court fee.
JIM RANKIN/TORONTO STAR Oniko Bailey is facing a deportatio­n order for the second time. After applying for a pardon, the 28-year-old discovered he had an outstandin­g court fee.

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