Date: 20100118
Docket: IMM-2659-09
Citation: 2010 FC 30
Ottawa, Ontario, this 18th
day of January 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Ngoc
Quang NGUYEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CANADA
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “IRPA”) of a
decision of the Immigration Appeal Division (the “IAD”) of the Immigration and
Refugee Board of Canada (the “Board”) dated May 5, 2009, dismissing the
applicant’s appeal of his removal order.
[2]
Ngoc
Quang Nguyen, the applicant, was born in a Hong Kong refugee camp on February 24,
1985. He came to Canada as a permanent resident on November 10, 1986
with his parents and his four siblings. At the age of nine, the applicant’s
parents gave him up to the care of a foster home because they could not
financially provide for all of their children. The applicant lived in foster
care until the age of 18.
[3]
On
February 12, 2004 the applicant was convicted of one (1) count of breaking and
entering and one (1) count of mischief. On February 13, 2004, the applicant was
convicted of six (6) counts of breaking and entering and five (5) counts of
mischief. The applicant spent five months and three weeks in pre-sentence
custody. The sentencing judge found this equivalent to 11 months of a sentence
and imposed an 18-month term of imprisonment for each of the thirteen charges
to be served concurrently following his pre-sentencing detention.
[4]
The
applicant completed his sentence, ultimately serving 12 months of his sentence
in prison and three months at a therapy centre before being released. Thus, of
the 18 months ordered, he completed 15 months prior to being released.
[5]
On
December 10, 2007, an immigration officer of Citizenship and Immigration Canada
prepared a report advising that the applicant was now inadmissible to Canada due to his
criminal convictions. On March 27, 2008 the Immigration Division of the Board
issued a deportation order against the applicant pursuant to paragraph 36(1)(a)
of the IRPA. The applicant filed an appeal with the IAD. On May 5, 2009,
the IAD dismissed the appeal on grounds of lack of jurisdiction.
* * * * * * *
*
[6]
The
following sections of the IRPA are relevant to this judicial review:
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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;
(b) having been convicted
of an offence outside Canada that, if committed in Canada, would constitute
an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years; or
(c) committing an act
outside Canada that is an offence in the
place where it was committed and that, if committed in Canada, would constitute an offence under an
Act of Parliament punishable by a maximum term of imprisonment of at least 10
years.
|
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;
b) être déclaré coupable, à
l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait
une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans;
c) commettre, à l’extérieur du
Canada, une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.
|
|
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.
(3) No appeal may be made under subsection
63(1) in respect of a decision that was based on a finding of inadmissibility
on the ground of misrepresentation, unless the foreign national in question
is the sponsor’s spouse, common-law partner or child.
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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) L’interdiction de territoire pour
grande criminalité vise l’infraction punie au Canada par un emprisonnement
d’au moins deux ans.
(3) N’est pas susceptible d’appel au titre
du paragraphe 63(1) le refus fondé sur l’interdiction de territoire pour
fausses déclarations, sauf si l’étranger en cause est l’époux ou le conjoint
de fait du répondant ou son enfant.
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* * * * * * * *
[7]
The
determinative issue for the IAD was whether the applicant’s appeal of his
deportation order was barred pursuant to subsection 64(2) of the IRPA.
The IAD concluded
that a sentence of less than two years, in this case 18 months, does, for the
purposes of subsection 64(2), become a sentence of more than two years simply
because the trial judge, in imposing the sentence of less than two years, took
into account the time already spent in custody as a result of the offence. Thus
the sentence was 29 months (11 months of pre-sentence custody and an 18-month
term of imprisonment after conviction) for the purposes of subsection 64(2).
Because it determined the applicant met the definition of “serious criminality”,
section 64 was engaged and the IAD had no jurisdiction upon which it could
consider an appeal of inadmissibility.
* * * * * * *
*
[8]
The
applicable standard of review of the IAD’s interpretation of whether “term of
imprisonment” includes pre-trial custody is correctness since it is a question
of jurisdiction and statutory interpretation (Brown v. Minister of Public
Safety and Emergency Preparedness, 2009 FC 660, para. 16; Dunsmuir
v. New
Brunswick,
2008 SCC 9).
[9]
The
applicant alleges that the IAD erred when it failed to properly interpret the
promotion of international law and human rights as well as the purpose of
family reunification as objectives of the IRPA. The IAD found security
to be an objective of the IRPA. The applicant objects to the emphasis
placed on this particular objective in the case at bar. Recent jurisprudence
from the Supreme Court of Canada and the Federal Court supports the IAD’s
interpretation, however.
[10]
In Medovarski
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539,
the Supreme Court explained the objectives of the IRPA illustrate the
intent of Parliament to prioritize security by restricting access to Canada for
those who engage in violence:
[10] The objectives as expressed in
the IRPA indicate an intent to prioritize security. This
objective is given effect by preventing the entry of applicants with
criminal records, by removing applicants with such records from Canada,
and by emphasizing the obligation of permanent residents to behave lawfully
while in Canada. This marks a change from the
focus in the predecessor statute, which emphasized the successful integration
of applicants more than security: e.g., see s. 3(1)(i) of the IRPA
versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA
versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA
versus s. 3(i) of the former Act. Viewed collectively, the objectives of
the IRPA and its provisions concerning permanent residents, communicate
a strong desire to treat criminals and security threats less leniently than
under the former Act.
(My
emphasis.)
[11]
Justice Michel Shore confirmed this
interpretation in Ramnanan v. Minister of Citizenship and Immigration et al.,
2008 FC 404:
[46] The objectives of the IRPA,
enumerated in section 3, are twofold: paragraphs (a) to (g),
contain objectives aiming at facilitating immigration and family reunification;
paragraphs (h) and (i), on the other hand, aim to protect the
health, safety and security of the Canadian society:
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3.
(1) The objectives of this Act with respect to
immigration are
…
(h)
to protect the health and safety of Canadians and to maintain the security of
Canadian society;
(i)
to promote international justice and security by fostering respect for human
rights and by denying access to Canadian territory to persons who are
criminals or security risks; and
|
3. (1) En
matière d’immigration, la présente loi a pour objet :
[…]
h) de protéger la santé des Canadiens et
de garantir leur sécurité;
i) de promouvoir, à l’échelle
internationale, la justice et la sécurité par le respect des droits de la
personne et l’interdiction de territoire aux personnes qui sont des criminels
ou constituent un danger pour la sécurité;
|
[47] In drafting the new
immigration legislation, Parliament decided that the tipping point had been
reached and it intended for the sake of the security of Canadian society, to
restrict access to Canada for persons inadmissible on
grounds of criminality, serious criminality and to those who engage in
violence, terrorism or violations of international and human rights. The
intention of Parliament in that regard materializes in various provisions, for
example, in s. 64, ss. 68(4), s. 196 and s. 197 of the IRPA. (Medovarski,
above; Martin v. Canada (Minister of Citizenship and
Immigration),
above.)
[12]
Thus,
the IAD correctly acknowledged that legislative intent of the IRPA, as set
out in the Supreme Court’s reasons in Medovarski, supra, and
confirmed in Ramnanan, supra.
[13]
The
applicant submits that the pre-trial custody should not be included in the
calculation of the term of imprisonment. Thus, the IAD has jurisdiction to hear
the appeal as the applicant was sentenced to only 18 months of imprisonment.
Furthermore, the applicant argues that he only served 15 months before he was
released. The IAD allegedly erred by not considering the term of imprisonment
as that time actually spent in incarceration rather than the initial sentence.
Both of the applicant’s arguments should be dismissed.
[14]
As
noted by Justice Michael Phelan in Brown, supra, there is
significant case law from the Federal Court which concludes that pre-trial
custody can be considered part of the “term of imprisonment” pursuant to
subsection 64(2). Specifically in Minister of Citizenship and Immigration v.
Atwal, 2004 FC 7, I found that the pre-trial custody would be included in
calculating the term of imprisonment under section 64:
[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.
[15]
In
so doing, I relied on
the Supreme Court’s reasoning in R. v. Wust, [2000] 1 S.C.R. 455. At
paragraph 41 of that decision Madam Justice Louise Arbour found that 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)” (see also Magtouf v. The Minister of
Citizenship and Immigration, 2007 FC 483).
[16]
The applicant,
however, relies heavily on the Supreme Court’s more recent decision in R. v.
Mathieu, [2008] 1 S.C.R. 723. The comments of the Court clearly indicate,
according
to the applicant, a departure from Wust, above, and the previous dicta
from the Federal Court:
[6] In short, I find that the
term of imprisonment in each case is the term imposed by the judge at the time
of sentence. The offender’s prior detention is merely one factor taken into
account by the judge in determining that sentence. This conclusion is dictated
by the relevant provisions of the Criminal
Code, including ss. (1) and (3) of s. 719. It is also
consistent with the presumption of innocence to which every accused, even if
detained pending trial, is entitled until he or she is convicted. As we will
see below, it is consistent as well with the sentencing objectives that are
relevant here.
[7] Although it is possible, on
an exceptional basis, to treat the time spent in pre‑sentence custody as
part of the term of imprisonment imposed at the time of sentence — in the
context of a minimum sentence, for example, or of a conditional sentence —
these are exceptions that prove the rule. As to minimum sentences, see R. v. Wust,
[2000] 1 S.C.R. 455, 2000 SCC 18; regarding conditional sentences, see R. v. Fice,
[2005] 1 S.C.R. 742, 2005 SCC 32.
[17]
However,
Deputy Justice Louis Tannenbaum recently considered the impact of Mathieu, supra, in Ariri v. Minister
of Public Safety and Emergency Preparedness, 2009 FC 834, and found that
considering the pre-trial custody as part of the term of imprisonment for the
purposes of determining if the applicant has serious criminality is an acceptable
exception to the ruling in Mathieu (see also Brown, supra).
[18]
A
separate argument put forward by the applicant is that the IAD should have
considered how much time the applicant actually spent in prison rather than the
term of imprisonment imposed. However, the respondent notes that this Court is
bound by the Federal Court of Appeal’s decision in Martin v. Minister of
Citizenship and Immigration, 2005 FCA 347, at paragraph 5 where Madam
Justice Sharlow held that the word “punished” in subsection 64(2) “refers
to the sentence imposed, not the actual duration of incarceration” (see also Nabiloo
v. The Minister of Citizenship and Immigration, 2008 FC 125). Thus, the applicant’s
argument is untenable.
[19]
I
note that there is no dispute that the five months and three weeks the
applicant spent in pre-trial custody is equivalent to 11 months credited to the
applicant’s sentence. In contrast, in Brown, supra, Justice Phelan was
persuaded that the 2:1 credit was not clearly credited to the applicant. Thus,
the IAD’s decision that it did not have jurisdiction was an error as the term
of punishment was less than two years. This is distinguishable from the case at
bar. The term of imprisonment here equals 29 months.
[20]
With
regard to the case law, it is clear that the IAD did not commit a reviewable error interpreting
the objectives of the
IRPA. Similarly, the IAD did not commit a
reviewable error interpreting “punished in Canada by a term of imprisonment”, subsection 64(2), as
inclusive of the time an offender spends in pre-trial custody. Thus, for the
purposes of subsection 64(2), a
“sentence” of imprisonment can include the time the applicant has spent in
pre-trial custody. The IAD correctly applied the
law.
* * * * * * * *
[21]
For
all the above reasons, the intervention of the Court is not warranted and the
application for judicial review is dismissed.
[22]
The
applicant asks that the following question be certified:
In
light of [the text of the proposed question reads “In lieu of”] the recent decision in R. v. Mathieu, [2008] 1 S.C.R. 723, 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?
[23]
Considering
that in the cases of Brown, above, and Ariri, supra, this Court concluded
that the Mathieu decision did not change
the law regarding the question at issue; considering that the applicant did not refer to
any decision to the contrary; considering that when the law is clear on the issue
addressed by the proposed certified question, the Court should not certify it
(see, for
example, Kumar
v. Minister of Citizenship and Immigration, 2004 FC 601, para. 27; Hussenu v. Minister of Citizenship and
Immigration,
2004 FC 283, para. 42; and
Arumugam
v. Canada (M.E.I.),
[1994] F.C.J. No. 122 (T.D.) (QL), para. 5), I agree with the respondent that there is no
question for certification arising in this case.
JUDGMENT
The application for judicial
review of a decision of the Immigration Appeal Division of the Immigration and
Refugee Board of Canada dated May 5, 2009, dismissing the applicant’s appeal of
his removal order, is dismissed.
“Yvon
Pinard”
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