An American teacher convicted of having sex with a 15-year-old student has been sent to serve three years probation in Canada in an unusual case that has immigration experts questioning its legality.

A U.S. judge gave Malcolm Watson a choice between serving as much as a year behind bars or agreeing to a three-year sentence at his home in Canada. Watson, a 35-year-old former teacher at Buffalo Seminary in New York state, chose Canada.

Malcolm Watson agreed to a three-year sentence at his home in Canada.
(CBC)

Under the sentence for sexual abuse imposed by Cheektowaga town court, Watson can enter the United States only to report to his probation officer. Watson lives in St. Catharines, Ont., with his Canadian wife and three children. His sentence started Monday.

Robert Kolken, a Buffalo immigration lawyer, told the Toronto Star that exiling a citizen is unheard of.

"I don't see how a judge sitting in a criminal court in the U.S. can lawfully banish a citizen as a condition of sentencing," he said.

"The real issue is whether it's legal or not," he told the paper, adding that he wonders whether the sentence can even be enforced.

No assurances given

Erie Country District Attorney Frank Clark told CBC News the agreement was amenable to the state, but that no assurances were made to Watson. 

"He asked us and the court for permission to serve his sentence while living with his family in Canada," Clark said.

"Our response was, 'We don't really care if you want to live in Canada. It's all right with us. We don't know if it's all right with the Canadian authorities. You'll have to take your chances with them."

Watson's lawyer, Oscar Smuckler, told the Buffalo News he looked into the implications of the sentence and thought it "unlikely that Canada will do anything" to upset the arrangement.  

Immigration lawyer Marshall Drukarsh agreed with Smuckler's assessment.

"If an individual is a permanent resident of Canada and he has been found guilty in the United States of a crime and the equivalent crime in Canada is punishable by a term of imprisonment at most of, say, five years, then his permanent resident status in Canada is not in jeopardy," Drukarsh said.

Still, it remains to be seen how Canadian authorities will react.

Citizenship and Immigration Minister Monte Solberg said that while he could not comment on the case because of privacy concerns, he could comment in general terms about how federal officials would deal with non-Canadians convicted of crimes elsewhere.

"If non-citizens pose a threat to Canada, we will do everything in our power to have that person removed as quickly as possible," he said in an interview with the Globe and Mail.

Citizen and Immigration spokesman Edison Stewart told the Star the Canadian Border Services Agency studies such situations on a case-by-case basis.

"Someone convicted of a serious offence would normally be barred from Canada. But every case must be examined as to the exact nature of the foreign conviction and its equivalency in Canadian law before a final determination is made by CBSA," Stewart said.

A CBSA spokeswoman told the newspaper she was not aware of Canadian pre-approval of the deal.

Different consent laws

Canada and the U.S. have different laws regarding sex with a minor, and Canadian approval for the deal may depend on whether Watson would have been charged with such an offence in this country.

In Canada, the age of consent is 14 years unless sex occurs during a relationship of trust or dependency — such as in a teacher-student relationship — in which case the age of consent rises to 18.

In June, the federal Conservatives moved to raise the sexual age of consent to 16 years from 14.

In New York state, the age of consent for male-female sex is 17.

Watson, described in media reports as a popular English teacher, pleaded guilty to having sex with a 15-year-old female student in a parked car in April.

According to the Buffalo News, the school fired Watson in April, after he had been suspended a month earlier for ignoring a previous warning to stay away from the student.

The girl's parents are reported to approve of the sentence because it means their daughter won't have to testify in public. 

With files from the Canadian Press