Judge grants U.S. deserter’s last-ditch effort to stave off deportation
The Canadian Press, September 22, 2008
TORONTO — A high-profile American war dodger won a desperate bid to stay in Canada on Monday as a judge refused to allow Canada to send him back to the United States to face prosecution for desertion.
Jeremy Hinzman’s reprieve from scheduled deportation on Tuesday came after Federal Court heard an Immigration official had made serious errors in assessing the hardships the deserter and his family would face if forced back to the U.S.
“Of course, we’re elated – we weren’t expecting this much, so it’s a nice surprise,” Hinzman said moments after the decision was released.
“(But) we’re not out of the woods at all. We just have a stay of removal.”
Earlier in the day, Hinzman’s lawyer Alyssa Manning told Justice Richard Mosley that new evidence suggests outspoken critics of the 2003 American-led invasion of Iraq face harsher treatment than other deserters.
For example, she said, deserter Robin Long was sentenced to 15 months in prison last month after prosecutors made mention of a media interview he had given in Canada before he was deported in July.
As one of the first of scores of deserters to seek refuge in Canada rather than fight in Iraq, Hinzman’s case has been even more public.
“He is the person associated with objections to the war in Iraq,” Manning told the court.
The issue of “differential” treatment for those who have spoken out against the U.S.-led invasion appeared to trouble Mosley.
“I don’t know how it is an aggravating feature or element to be introduced in sentencing,” the judge said.
Crown lawyer Stephen Gold called it “speculation and surmise” that criticizing the U.S. military in public has led to harsher sentences for deserters.
“It is not really for us to pass judgment on a military code in a foreign country,” Gold said.
Hinzman, 29, deserted the 82nd Airborne Division in January 2004 just before he was scheduled to deploy to Iraq. He fled to Toronto with his wife and young son after his application for conscientious-objector status was rejected.
Canada rejected his refugee claim – a decision two courts upheld – on the basis he faces prosecution, not persecution, in the U.S.
Hinzman argued for the deportation stay while the courts decide if they will review Ottawa’s rejection of his bid to remain in Canada on humanitarian and compassionate grounds.
A ruling on the humanitarian application likely won’t take more than a few months, Mosley wrote in rejecting Gold’s contention the immigration and justice systems would be hurt by giving Hinzman the reprieve.
“Based on the evidence and submissions before me, I am satisfied that the applicants would suffer irreparable harm if a stay were not granted pending determination of their leave application,” Mosley said in his three-page endorsement.
Gold told the court Hinzman knew when he enlisted that he could face up to five years for desertion – a felony offence – comparing him to someone who commits a crime despite knowing the possible punishment.
“The applicant is going back to face the consequences of his own actions,” Gold told the court.
“That cannot be laid at the feet of the Canadian government in deporting him.”
But Manning said Hinzman and his family would face undue hardship if deported.
She noted he might not receive proper psychiatric treatment for his schizo-affective disorder if jailed in the U.S.
She also harshly criticized Ottawa’s failure to properly consider the damage that being separated from Hinzman would cause his wife, six-year-old son and newborn daughter.
In June, a non-binding motion passed in the House of Commons called for the deserters to be allowed to stay in Canada permanently as conscientious objectors.
Following the court decision, the War Resisters Campaign called again on the government of Prime Minister Stephen Harper to act on the Commons’ motion and to “cease deporting Iraq war resisters.”
The NDP’s Olivia Chow, who introduced the motion, said Monday, “Clearly the courts are standing up when Stephen Harper won’t and respecting the will of Parliament.”
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