PETERBOROUGH, ONT.—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 break-up 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 him.

Last year, after a “guarantee” from a Canada Border Services Agency 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.

Loading... Loading... Loading... Loading... Loading... Loading...

.

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, and 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 an 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 in January, 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 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.”