Date: 20050726
Docket: IMM-6694-04
Citation: 2005 FC 1033
St. John's, Newfoundland and Labrador, July 26, 2005
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
IAN TYRONE SHEPHERD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Ian Tyrone Shepherd (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the "IAD"), dated July 8, 2004, where it found that the Applicant's pre-sentencing custody formed part of his term of imprisonment for the purpose of determining "serious criminality" pursuant to subsection 64(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act"). The IAD dismissed the Applicant's appeal from the deportation order issued against him, on the grounds of lack of jurisdiction.
[2] The Applicant is a twenty-seven year old citizen of Jamaica who became a permanent resident of Canada on December 5, 1987. Between 1996 and 2001, he was convicted of several criminal offences including theft, assault, obstructing a Peace Officer, and possession of counterfeit money. On November 29, 2001, he was convicted of robbery with a prohibited firearm, pursuant to section 344 of the Criminal Code, R.S.C. 1985, c. C-46. On December 4, 2002, he was sentenced to a three year term of imprisonment and credited with the equivalent of one year, eight months and one week relative to time spent in pre-sentence custody. The Applicant, after sentencing, served one year and two weeks in prison.
[3] The imposition of a three year prison term led to an admissibility hearing pursuant to paragraph 36(1)(a) of the Act which provides as follows:
| 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; ... |
|
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants_: a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; ... |
[4] That hearing was conducted by the Immigration Division of the Immigration and Refugee Board on January 7, 2003, pursuant to subsection 44(2) of the Act. The Applicant was found to be a person described in paragraph 36(1)(a). Subsection 45(d) requires that, in such circumstances, the applicable removal order be made. On January 16, 2003, a deportation order was issued against the Applicant. The issuance of a removal order means, pursuant to paragraph 46(1)(a), that a permanent resident loses that status when the removal order comes into effect.
[5] Pursuant to subsection 48(1), a removal order is enforceable if it has come into force and is not stayed. In that case, the effect upon a person is immediate since subsection 48(2) provides that "the foreign national against whom [the removal order] was made must leave Canada immediately."
[6] The availability of a right to appeal from the decision following an admissibility hearing arises at the time where a removal order made under section 45 can be legally enforced. In this regard, paragraph 49(1)(a) provides that a removal order comes into force on the day the removal order is made, if there is no right to appeal. If there is a right of appeal, then pursuant to paragraph 49(1)(c), the removal order only comes into force on the day of the final determination of the appeal. The Applicant filed a notice of appeal to the IAD on January 17, 2003.
[7] Prior to the hearing of the appeal, the Minister requested the IAD to decline jurisdiction in view of section 64 of the Act. That provision precludes appeals to the IAD by persons found to be inadmissible on certain grounds including "serious criminality", that is a crime for which a prison term of at least two years has been imposed.
[8] The IAD invited the parties to make submissions on the issue of its jurisdiction to hear the appeal from the deportation order. On July 8, 2004, the IAD concluded that the pre-sentencing custodial terms that had been expressly taken into account and credited to the Applicant's sentence formed part of the term of imprisonment for the purposes of subsection 64(2) of the Act. The IAD found that it was bound by the decision of the Federal Court in Atwal v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 170 (T.D.). It ruled that the Applicant had lost his right of appeal in light of subsection 64(2) of the Act, which provides as follows:
| ... 64(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. |
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... 64(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans. |
[9] The sole issue arising in this application for judicial review is whether the IAD erred in law by finding that the Applicant's pre-trial custody should be recognized as part of the term of imprisonment imposed upon him, thereby removing his ability to appeal to the IAD. This issue involves statutory interpretation and is reviewable on the standard of correctness.
[10] The thrust of the Applicant's argument is that he served only one year and two weeks in prison following the imposition of his sentence. He submits that the IAD erred by taking the pre-sentence detention into account for the purpose of determining that the punishment imposed upon him was three years, thereby leading to a finding of serious criminality. The Applicant argues that such an approach is contrary to one of the stated purposes of the Act, that is the objective of facilitating family unity as addressed in paragraph 3(1)(d).
[11] However, the effect of that sentence for the Applicant's status in Canada, having regard to the Act is another matter. I therefore reject this argument. In presenting it, the Applicant ignores the fact that the calculation of his sentence is governed by the Criminal Code, supra.
[12] Subsection 719(3) of that legislation specifically provides that pre-sentence detention can be taken into account when a court is imposing a sentence. The Supreme Court of Canada has considered and approved of the application of section 719, to the effect that pre-sentence custody can be taken into account in determining the appropriate custodial sentence to be imposed. In this regard, I refer to R. v. Wust, [2000] 1 S.C.R. 455; R. v. Arrance , [2000] 1 S.C.R. 488; and R. v. Fice, [2005] S.C.J. No. 30 (Q.L.).
[13] In the present case, the Warrant of Committal that was signed by the sentencing judge on December 4, 2002 records the imposition of sentences for three offences. In respect of the charge of robbery with a prohibited firearm, a three year sentence was imposed "minus pre-trial custody of 1 year, 8 months, 1 week x's (times) 2.4 when 3 to a cell".
[14] It is clear that the Applicant received a three year sentence and this fact is unchanged by the subsequent fact that he was incarcerated for only one year and two weeks.
[15] Subsection 64(2) of the Act speaks of "serious criminality" in terms of punishment of a crime. "Punishment" is not synonymous with the time a person actually spends in jail. In that regard, I refer to Cartwright v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 98 (T.D.) where I said the following at pages 111 - 113:
The wording of subsection 64(2) is not immediately clear. It states that a person will fall within the definition of "serious criminality" and have his or her appeal rights curtailed before the IAD, with respect to "a crime" that "was punished" in Canada "by a term of imprisonment" of at least two years. The words "was punished" are very different from the wording of the inadmissibility provisions of the former Act, where the maximum term of imprisonment that may be imposed for a particular crime was often the governing consideration (sections 19(1) and (2) of the former Act).
...
The interpretation of the words of section 64(2) in their "grammatical and ordinary sense" means that it is the actual punishment which an individual received in Canada which is determinative. The introductory wording of subsection 64(2), "For the purpose of subsection 1 ...", suggests, in my view, that this provision is to be read separately from subsection 36(1)(a) of IRPA, which defines serious criminality for the purpose of inadmissibility and speaks in terms of possible sentences which may be imposed for an offence.
...
Despite the fact that subsection 64(2) cannot be interpreted along the same lines as section 36(1)(a) of IRPA and the fact that the definition differs from the former Act's definition of criminality, in my view, the interpretation urged by the Applicant cannot be accepted. It is the term of imprisonment imposed which subsection 64(2) describes, rather than the actual length of time served in prison prior to being granted parole.
...
To "punish" a person for a crime is to impose judicial sanction; it is to pronounce a sentence relative to the crime for which a conviction has been entered. In my opinion, this definition of "punish" supports the interpretation that the Applicant was "punished" at the time of his sentencing, when the Supreme Court of Nova Scotia convicted and sentenced [the applicant in that case] to four years imprisonment in a federal penitentiary.
[16] In my opinion, having regard to the Warrant of Committal that was signed in this case, it is clear that the sentencing judge considered the pre-sentencing detention to be part of the punishment imposed on the Applicant. That approach is consistent with the Criminal Code, supra and the jurisprudence. In the result, the record shows that the Applicant was punished by a term of imprisonment of at least two years and that falls within the definition of "serious criminality" pursuant to subsection 64(2). In these circumstances, he has no right of appeal to the IAD. The IAD correctly answered the question about its jurisdiction and there is no basis for judicial intervention.
[17] The application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6694-04
STYLE OF CAUSE: IAN TYRONE SHEPHERD v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: June 28, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER: Honourable Madam Justice Heneghan
DATED: July 26, 2005
APPEARANCES: Mr. Avi J. Sirlin
For the Applicant
Ms. Matina Karvellas
For the Respondent
SOLICITORS OF RECORD: Avi J. Sirlin
Barrister and Solicitor
425 University Ave., Suite 500
Toronto, Ontario M5G 1T6
For the Applicant
John H. Sims Q.C.
Deputy Attorney General of Canada
For the Respondent