Date: 20040116
Docket: IMM-2139-03
Citation: 2004 FC 63
EDMONTON, ALBERTA, FRIDAY, THE 16t" DAY OF JANUARY, 2004
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
and
Applicant
DWIGHT ANTHONY SMITH
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The issue in the present case concerns the application of ss. 36(1) and 64(1) and (2) of the Immigration and Refugee Protection Act ("IRPA ").
[2] By s.36(1)(a), a permanent resident or foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years. With
respect to appeal rights connected to such a finding of serious criminality, ss. 64(1) and
(2) read as follows:
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.
64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
(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.
(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
[3] The issue advanced for determination by the Applicant is the correct
interpretation of the phrase "term of imprisonment" in s. 64(2).
[4] The Respondent was born in Jamaica on February 19, 1971, and was landed in Canada on February 2, 1993; he has not become a Canadian citizen. On December 11, 2001, the Applicant plead guilty in Edmonton, Alberta, to a charge of possession of cocaine for the purposes of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, an offense punishable by life in prison. Following the plea, Judge Caffaro of the Criminal Division of the Provincial Court of Alberta sentenced the Respondent on the basis of a joint submission by Crown counsel and defence counsel. As the sentence imposed was directly responsive to the joint submission, the content of the joint submission is important. The transcript of that proceeding contains the following statements (Applicant's Application Record, p. 19-20 and 23-24):
MS. ESPEUT[Crown Counsel]: Sir, there's a joint submission before you for three years incarceration. I believe my friend will agree with my [sic] that this is a commercial trafficking operation, and following along the principles outlined in the case of Maskell, three years is an appropriate sentence for this accused. In addition to that, sir, perhaps as an aside with regards to the separate Project Calcium charges, those charges will be stayed against the accused. The accused is currently serving - or in pretrial custody in relation to the Project Calcium charges which will be stayed. So, as a result of that, we are asking the Court to take into consideration the time that the accused has spent in pretrial custody in relation to the Calcium charges and apply that time to these separate charges at a rate of two-to-one. Now, I can advise you, sir, that Smith was first arrested in relation to Project Calcium on September 15th, 2000. It's by my calculation on December 15th, 2001, he will have spent proximately 15 months in pretrial custody, and at a rate of two-to-one on that date, we arrive at approximately 30 months. So, I believe today we are about four days shy, or four days away from the 15".
THE COURT: So, what you are saying is there is six months to go.
MS. ESPEUT: Approximately. Sir, those are all my submissions with regards to sentence, but I would like to make some submissions with regards to the order of forfeiture.
UNIDENTIFIED COUNSEL: Good morning, Your Honour. This matter is before the Court by way of agreement between Crown and defence on the facts and the ultimate disposition. Negotiations to achieve the agreement took four and a half months, commencing at the beginning of August and concluding this past Sunday.
In conclusion, the disposition of this case which is jointly urged upon the Court is within the guidelines of this jurisdiction. It acknowledges the gravity of this offence and accords due weight to Mr. Smith's circumstances which have made his incarceration a special hardship for him. It is presented to the Court as one which Your Honour can have full confidence in imposing.
THE COURT: Thank you, Mr. Richen. After having heard both the Crown and the defence, I am disposed to accept the joint submission. Mr. Smith, I am going to sentence you to three years, but the three years is not - has to be discounted because I am taking into account 30 months of practical custody, which is the 15 months you have spent in the Remand Centre times the normal factor of two. Therefore, leaves you with a sentence of six months to fulfill your agreed settlement sentence. There will be no victim fine surcharge.
[5] As a result of the guilty plea, on July 10, 2002, an immigration officer made a report under s. 44(1) of IRPA that the Respondent is inadmissable pursuant to s. 36(1)(a), and on October 3, 2002, following an admissibility hearing, a deportation order was issued. On that same date, the Respondent filed a Notice of Appeal to the Immigration Appeal Division of the Immigration and Refugee Board ("the LAD"). On October 8, 2002 counsel for the Minister filed an application pursuant to s. 42 of the Immigration Appeal Division Rules seeking an order dismissing the Respondent's appeal on the ground that the IAD lacked jurisdiction to hear it. On April 4, 2003, the IAD heard the application, and on April 9, 2003, the Applicant received a copy of the IAD's reasons and decision.
[6] The IAD's reading of Judge Caffaro's statements on sentencing is as follows
(Applicant's Application Record, pp. 9-10)
[13] As is self-evident from this extract, the sentencing Judge himself says both the three year sentence and the six months sentence is the "sentence" he is imposing on Mr. Smith. But the final sentence imposed, the actual time Judge Caffaro ordered Mr. Smith to serve in custody, is six months.
[14] I agree with Mr. Smith's counsel that this is the appropriate approach to take in terms of identifying the sentence imposed by the judge in the context of the provisions of subsections 64(1) and (2) of IRPA. In the context of
removal order appeals, the Appeal Division does not "look behind" a sentencing judge's decision in assessing an appellant's record of convictions and the other factors the sentencing judge takes into account in arriving at a final sentence.
...
[17] Mr. Smith's counsel also notes that the sentencing judge's final sentence of six months incarceration is what is recorded on the Record of Conviction found at page 18, Exhibit C-1 to the Index of Documents for the
Admissibility Hearing of Dwight Anthony Smith, found as part of the record and of counsel for Mr. Smith's submissions of October 15, 2002. In my books, what Correctional Services Canada says is the "sentence" on a
convicted accused's Record of Conviction is what the sentence is. That is the term of imprisonment the sentencing judge ultimately imposed on the convicted offender.
[18] This document states that Mr. Smith "was convicted of the said offence [of possession for the purposes of trafficking] and on the I I" day of December, 2001, the following punishment was imposed on him, namely, that the said accused be imprisoned in any prison for the term of 6.0 months." Thus, I find that six months incarceration is the sentence which was imposed on Mr. Smith.
[19] Because Mr. Smith was not sentenced to a term of imprisonment of at least two years as required by subsection 64(2), he does not lose his right of appeal.
[7] The Applicant frames the issue of law for determination this way: the question in the present judicial review application is whether pre-sentence custody, expressly credited toward the Respondent's criminal sentence, forms part of the term of imprisonment for the purposes of s.64(2) of IRPA.
[8] In support of a positive response to the question, counsel for the Applicant, during
the course of oral argument, cited the very recently issued decision in Minister of Citizenship and Immigration v. Iqbal Singh Atwal (IMM-3260-03, decision January 8,2004, citation 2004 FC 7) where Justice Pinard says as follows:
[10] The standard of review in this matter is one of correctness (see Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982), since the issue whether pre-sentence custody forms part of the term of imprisonment and the IAD's interpretation of subsection 64(2) of the IRPA are questions of law.
[11] The Supreme Court of Canada has stated that pre-trial custody is deemed part of the punishment, and therefore part of the sentence following the offender's conviction. In the Supreme Court of Canada decision of R. v. Wust, [2000] 1 S.C.R. 455, Arbour J. writes at pages 477-478 that:
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).
[12] In Allen v. Minister of Citizenship and Immigration (May 5, 2003), IMM2439-02, my colleague Justice Snider found it self-evident that a term of imprisonment includes pre-sentence custody, and as such, re-affirmed that time served in pre-sentencing custody does form part of the term of imprisonment in an immigration context. In that case, the offender was sentenced to time served plus 21 months; such a sentence was deemed to be 24 months by Snider J. In the case at bar, the Warrant of Committal on Conviction indicates a final custodial sentence of 6 months in addition to the 20 months of pre-sentence custody (credited at 3 and ''/z years), for a total of four years of punishment. In refusing to consider pre-sentence custody, the IAD erroneously focussed on a narrow interpretation of "sentence" and "term of imprisonment" and ignored the principles set out by the Supreme Court of Canada and the Federal Court.
[13] 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.
[14] Subsection 719(3) of the Criminal Code authorizes consideration of pre-sentence custody in determining the appropriate custodial sentence:
719. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
[... 1(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.
719. (1) La peine commence au moment oÿ elle est infligée, sauf lorsque le texte législatif applicable y pourvoit de façon différente.
[...]
(3) Pour fixer la peine à infliger à une personne déclarée coupable d'une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l'infraction.
[15] 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 to 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.
[9] In Atwal, upon deciding that the IAD's decision was made in reviewable error,
and remitting it for re-hearing by a differently constituted panel, Justice Pinard certified
the following question:
Does pre-sentence custody, which is expressly credited towards a person's criminal sentence, form part of the "term of imprisonment" under section 64(2) of [sic] Immigration and Refugee Protection Act?
[10] I agree with the opinion expressed by Justice Pinard with respect to the issue of law for determination in the present case. In addition, similar to the situation before Justice Snider in Allen, in the present case the sentencing judge made it clear that the sentence imposed included the pre-sentence custody; Judge Caffaro specifically sentenced the Respondent to three years in custody, as requested in the joint submission. As a result, I find that the IAD's decision in the present case was made in reviewable error of both law and fact.
ORDER
[1] Accordingly, the IAD's decision is set aside and the matter is referred to a differently constituted panel for redetermination in accordance with the reasons provided herein
[2] By agreement of both counsel for the Applicant and for the Respondent, as was
done in Atwal, I certify the following question:
Does pre-sentence custody, which is expressly credited towards a person's criminal sentence, form part of the "term of imprisonment" under section 64(2) of the Immigration and Refugee Protection Act?
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2139-03
STYLE OF CAUSE: MCI v. DWIGHT ANTHONY SMITH
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 15, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE CAMPBELL
DATED: January 16, 2004
APPEARANCES BY:
W. Brad HardstaffFor the Applicant
Andrew FongFor the Respondent
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of CanadaFor the Applicant
Mah & Chiu
Edmonton, AlbertaFor the Respondent
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