Canada (Minister of Citizenship and Immigration) v. Gomes, 2005 FC 299

Date: 20060127

Docket: IMM-6689-03

Citation: 2005 FC 299

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Applicant

                                                                         - and -

                                                              RONALD GOMES

                                                                                                                                        Respondent

                                 AMENDED REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review by the Minister of Citizenship and Immigration (the "applicant") of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Board"), whereby the Board found that Ronald Gomes' (the "respondent") pre-sentencing custody did not form part of the respondent's term of imprisonment for the purposes of determining serious criminality under subsection 64(2) of the Immigration and Refugee Protection Act, S.C. 2001, C. 27 ("IRPA").

Background

[2]                The respondent is a citizen of Guyana who became a permanent resident of Canada on July 23, 1987.

[3]                The respondent was convicted of aggravated assault on October 16, 2001 and the warrant of committal issued by the Court reads as follows:

And it was adjudged that the offender for his/her offence be imprisoned in the said prison for the term of one year incarceration in addition to time served credited as 32 months.

[4]                As a result of this conviction, an admissibility hearing was held before the Immigration Division of the Board to determine if the respondent should be removed from Canada. The respondent was found to be a person described in paragraph 36(1)(a) of IRPA. The Immigration Division issued a deportation order against the respondent on September 16, 2002. The respondent appealed the removal order to the Appeal Division.

[5]                A preliminary question arose before the Board. That preliminary question was whether the respondent had a right of appeal to the Board because of subsections 64(1) and (2) of IRPA which read:

64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(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.

[6]                If the respondent's punishment was his pre-trial custody plus the one year term of imprisonment, then it would appear that no appeal could be made. On the other hand, if the respondent's punishment was only the one year of imprisonment, then he would have a right of appeal because he would fit within the definition of serious criminality.

[7]                After consider the submissions, the Board ruled that pre-sentencing custody was not part of the term of imprisonment imposed as punishment on the respondent and thus, he had a right to appeal to the Board.

[8]                This is the judicial review of that decision.

Issue

[9]                Did the Board err in law and in the exercise of its jurisdiction in concluding that despite the sentence of 32 months as time served (two years and eight months) plus an additional term of imprisonment of one year imposed by the Provincial Court Judge, the respondent was not punished by a term of imprisonment of at least two years and did not therefore lose his right of appeal under subsections 64(1) and (2) of IRPA?          

Relevant Statutory Provisions

[10]            Subsections 64(1) and (2) of IRPA read:

[11]            Subsections 719(1) and (3) of the Criminal Code, R.S.C. 1985, C-46 state:

Analysis and Decision

[12]            In sentencing the respondent, Mossip J. stated (tribunal record, pages 70 and 71):

CREDIT FOR PRE-DISPOSITION CUSTODY

[56]      I am not satisfied that Mr. Gomes suffered any extraordinary suffering as a result of his pre-trial custody circumstances. Even if I accept that everything Mr. Gomes reported to his lawyer was accurate, the Supreme Court of Canada in the case of R. V. Wust (2000), 143 C.C.C. (3d) 129, 148 (S.C.C.) wrote that it is for the ordinary hardships, i.e. lack of counseling or education, harshness of detention due to the absence of programs, and the fact that none of the remission mechanisms apply to this "dead" time, that the policy of offering 2:1 for pre-trial custody has arisen. The Court went on to write that the credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge. There is nothing in the circumstances described by Mr. Gomes that persuades me to give Mr. Gomes 3:1 credit as urged by defence counsel. I do find that the living conditions of Mr. Gomes for 7 months while at Maplehurst, where he apparently was the third person in a two-person cell, sleeping on the floor with his head by the toilet, warrants some enhanced credit for predisposition custody in this case. I am prepared to give Mr. Gomes credit for 32 months instead of the 28 months that a strict 2:1 ratio would result in.

DISPOSITION

[57]      In my view, a sentence that achieves the fundamental purposes of sentencing set out herein and which is proportionate to the gravity of Mr. Gomes' offence and his degree of responsibility is a sentence of a further one year of incarceration. With the credit set out above for the time already spent in custody, this sentence is the functional equivalent of a sentence of close to 4 years. I find that general deterrence is the predominant factor of the list of factors set out above, to be applied in determining an appropriate sentence for Mr. Gomes. Further, I have concluded that this was a very serious offence which requires an additional period of incarceration to have affect on this specific offender. Therefore, a conditional sentence would not be appropriate. Such a sentence would not reflect the seriousness of what happened, properly express the communities' abhorrence of domestic violence or adequately address the principles of specific and general deterrence.

[13]            A review of the sentencing judge's decision establishes that the respondent spent 14 months in pre-sentencing custody for which he got credit for 32 months. The sentencing judge, in imposing a further sentence of one year incarceration, took into account the 32 months of pre-sentencing custody for which she had given him credit. The sentencing judge stated that the sentence was the functional equivalent of a sentence close to four years.

[14]            It is obvious that if the period of pre-sentencing custody is considered to be part of the respondent's punishment, then his term of imprisonment will be at least two years and by virtue of subsection 64(1) of IRPA, he will have no right of appeal to the Appeal Division.

[15]            The definition of serious criminality contained in subsection 64(2) of IRPA speaks of crime that was punished in Canada by a term of imprisonment of two years. The section does not refer to a sentence of at least two years, but instead it speaks of imprisonment for at least two years.

[16]            The respondent submitted that subsection 719(1) of the Criminal Code, supra, states that a sentence commences when it is imposed therefore the only sentence that was imposed by the sentencing judge was a sentence of one year and therefore, the respondent still has a right of appeal to the Appeal Division. I do not believe that subsection 719(1) of the Criminal Code, supra, assists the respondent as it speaks of sentence while subsection 64(2) of IRPA speaks of punishment by a term of imprisonment of at least two years. Subsection 64(2) does not speak of a sentence of two years imprisonment.

[17]            In R. V. Wust, [2000] 1 S.C.R. 455, the Supreme Court of Canada has stated that pre-sentencing custody is deemed part of the punishment. In R. V. Wust, supra, Arbour J. wrote at pages 477 to 478:

Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3).

[18]            In Atwal v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 63, Pinard J. stated at paragraphs 13 and 15:

In my view, the IAD erred in failing to consider the purposes of the IRPA and the sentencing principles expressed in the Criminal Code, R.S.C. 1985, c. C-46. The IAD also failed to appreciate the reality of sentencing.

. . .

With section 64 of the IRPA, Parliament sought to set an objective standard of criminality beyond which a permanent resident loses his or her appeal right, and Parliament can be presumed bo have known the reality that time spent in pre-sentence custody is used to compute sentences under section 719 of the Criminal Code. To omit consideration of pre-sentence custody under section 64 of the IRPA when it was expressly factored into the criminal sentence would defeat the intent of Parliament in enacting this provision.

[19]            In my view, the sentencing judge considered the pre-sentencing custody to be part of the punishment imposed on the respondent. Accordingly, I am of the view that the respondent was punished by a term of imprisonment of at least two years; that being the 14 months pre-sentencing custody for which he was given credit for 32 months plus the one year sentence imposed by the sentencing judge.

[20]            The Board failed to consider the respondent's pre-sentencing custody in determining whether subsection 64(2) of IRPA applied.

[21]            The application for judicial review is therefore allowed and the matter is referred back to a differently constituted panel for redetermination.

[22]            The parties shall have one week from the date of this decision to submit any proposed serious question of general importance for my consideration and the opposing party shall have a further three days for submissions on any question submitted.

                                               ORDER

[23]            IT IS ORDERED that:

1.          The application for judicial review is allowed and the matter is referred to a differently constituted panel for reconsideration.

                                                                               "John A. O'Keefe"                

J.F.C.                     

Ottawa, Ontario

January 27, 2006

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-6689-03

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

- and -

RONALD GOMES

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   September 22, 2004

REASONS FOR ORDER OF                       O'KEEFE J.

DATED:                     January 27, 2006

APPEARANCES:

Amina Riaz

FOR APPLICANT

Dhaman Kissoon

FOR RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR APPLICANT

Kissoon & Associates

Toronto, Ontario

FOR RESPONDENT