Date: 20090623
Docket: IMM-2455-08
Citation: 2009 FC 660
Ottawa, Ontario, June 23,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALVIN
JOHN BROWN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
issue in this judicial review is whether the Immigration Appeal Division (IAD)
lacked jurisdiction to hear an appeal on the grounds that pre-sentence
incarceration of 17 months was deemed a credit of 34 months’ imprisonment.
The result of this pre-trial credit would be to deprive the Applicant of a
right of appeal as a result of being sentenced to a term of imprisonment of at
least two years.
[2]
The
jurisdictional issue arises in relation to section 64 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), which reads:
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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.
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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.
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[3]
While
this judicial review was heard in late November, due to unknown circumstances,
the Applicant’s submissions on a question of certification did not reach the
Court until May. No fault is attributed to any party.
II. BACKGROUND
[4]
The
Applicant Brown is in his mid-30s and is a citizen of Jamaica. He has been
in Canada since he was
eight years old, and has been a permanent resident almost all of that time.
[5]
On
September 10, 2002, Brown was convicted of two counts of robbery and one count
of using an imitation firearm during the commission of an offence.
[6]
At
Brown’s criminal trial, counsel for the Crown and counsel for Brown made a
joint submission as to the appropriate sentence given Brown’s time (17 months)
in pre-trial custody, some of which was during a strike at the jail. The
Ontario Court judge accepted the agreed sentence of one day in jail plus 18
months’ probation.
[7]
The
sentencing transcript, contained in the Certified Tribunal Record, contains a
single reference by the Crown to the possibility that pre-trial custody could
be considered as double time for purposes of sentencing. That reference is as
follows:
So that would be thirty-four months if
you double it, which is the normal practice in these courts. I understand
though that some Judges have been giving some extra time for time spent during
the strike. I leave that to Your Honour entirely. At any rate it’s seventeen
months pretrial custody and I do believe that that’s sufficient and it’s on
that basis that we’ve resolved this matter.
[8]
The
transcript then shows that the attention focuses on the probation and its
conditions. The formal sentencing by the judge makes no reference to pre-trial
custody, much less to any doubling of credit for time served.
[9]
As
a result of the sentence, and following an admissibility hearing before the
Immigration Division, Brown was found to be inadmissible to Canada due to
serious criminality. A deportation order was issued.
[10]
Brown
filed a Notice of Appeal with the IAD. The IAD, having had the jurisdiction
issue raised, determined that it would not decide the appeal until it had heard
the Humanitarian and Compassionate (H&C) considerations raised by Brown in
his appeal.
[11]
However,
before the appeal and H&C hearing took place, the IAD determined that it
did not have jurisdiction, cancelled the hearing, and dismissed the appeal.
[12]
In
so doing, the IAD determined that the issue was whether the pre-trial
incarceration was to be considered as straight time (1:1), or whether it was to
be considered such that each day served in jail was equivalent to two days of
“imprisonment” (2:1).
[13]
The
IAD concluded that, based on 17 months of pre-trial custody, the term of
imprisonment for purposes of s. 64(2) was 34 months and therefore Brown had no
right of appeal.
[14]
The
critical finding of the IAD was stated as follows:
The panel is of the opinion that the
terms of the joint submission could not be clearer on the intention of the
counsels and the acceptance of the trial judge.
…
It was clear in the wording used by both
counsels [sic] that they were satisfied with a seventeen months [sic]
pre-trial custody which is equivalent to thirty-four months by doubling it.
III. ANALYSIS
[15]
The
Applicant raised two issues:
(1) whether
pre-trial custody forms part of the “term of imprisonment” under s. 64 of the
IRPA; and
(2) whether
the Applicant’s 17 months of pre-trial custody constituted a term of
imprisonment of at least two years.
A. Standard
of Review
[16]
The standard of review
with regards to the first issue is correctness (see Sherzad v. Canada (Minister of
Citizenship and Immigration), 2005 FC 757 at paragraph 18), as it is a question of jurisdiction and statutory
interpretation. While the
decision in Sherzad, above, was decided pre-Dunsmuir (Dunsmuir
v. New
Brunswick,
2008 SCC 9), its conclusion as to the standard of review is still appropriate.
[17]
As
to the second issue, to the extent that it depends on a determination of
whether the 2:1 rule on pre-trial custody is a legal norm, it is a
determination outside the IAD’s field of expertise and should be decided on the
basis of correctness. To the extent that the issue is whether the 2:1 rule is
applicable and was applied, it is a question of mixed law and fact and subject
to review on a standard of reasonableness.
B. Pre-Trial
Custody/Term of Imprisonment
[18]
There
is significant case law in this Court which concludes that pre-trial custody
can form part of the “term of imprisonment” as the term is used in s. 64. The
Applicant’s reliance on the Supreme Court’s decision in R. v. Mathieu,
2008 SCC 21 is misplaced, as that decision was centered on different
considerations in respect of the definition of “sentence” in relation to a
“term of imprisonment”. I do not interpret Mathieu as reversing R. v.
Wust, 2000 SCC 18.
[19]
The
Supreme Court in Wust, above, determined that pre-trial custody may form
part of the punishment imposed following a conviction. Justice Arbour, writing
for the Court, stated at paragraph 41 of Wust, above, 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).
The effect of deeming such detention punishment is not unlike the
determination, discussed earlier in these reasons, that time spent lawfully at
large while on parole is considered nonetheless a continuation of the
offender’s sentence of incarceration.
[20]
Similarly
to Wust (and unlike the issues raised in Mathieu, above), section
64(2) of the IRPA takes into consideration how the person was actually
punished, as is expressed by the phrasing “punished in Canada by a term of
imprisonment.”
[21]
Further,
the purpose of s. 36 of the IRPA is to exclude from Canada non-citizens
who have committed certain serious crimes. A measure of the seriousness of the
crimes is the length of imprisonment imposed or - in the case of pre-trial custody
- that which was considered as part of the punishment by the sentencing judge.
[22]
For
purposes of IRPA, the focus is on the term of imprisonment which the sentencing
judge imposed or considered as part of the punishment. That is the measure of
seriousness to which IRPA is directed.
[23]
Therefore,
the IAD was correct that pre-sentencing custody could be part of the
calculation in determining whether the Applicant had been punished by a term of
imprisonment of at least two years. The question that remains is whether the
IAD properly determined that that was the situation in this instance.
C. 17
Months/Term of Imprisonment
[24]
The
critical issue is whether the sentencing judge gave a 2:1 credit to Brown for
having been in pre-trial custody for 17 months, such that he was punished by a
term of imprisonment of 34 months plus 1 day to be followed by 18 months’
probation.
[25]
The
policy reasons behind this 2:1 credit are described by Justice Arbour in Wust,
above at paragraph 45, and it is made clear that this credit is not
automatic.
In the past, many judges have given more
or less two months credit for each month spent in pre-sentencing detention.
This is entirely appropriate even though a different ratio could also be
applied, for example if the accused has been detained prior to trial in an
institution where he or she has had full access to educational, vocational and
rehabilitation programs. The often applied ratio of 2:1 reflects not only the
harshness of the detention due to the absence of programs, which may be more
severe in some cases than in others, but reflects also the fact that none of
the remission mechanisms contained in the Corrections and Conditional
Release Act apply to that period of detention. “Dead time” is “real” time.
The credit cannot and need not be determined by a rigid formula and is thus
best left to the sentencing judge, who remains in the best position to
carefully weigh all the factors which go toward the determination of the
appropriate sentence, including the decision to credit the offender for any
time spent in pre-sentencing custody.
[26]
In
this case, the IAD was unreasonable in concluding that the sentencing judge
“could not be clearer” in accepting a 2:1 credit. The sentencing judge was
completely silent on the point and even Crown counsel was unsure what the
credit should be.
[27]
The
fact that the sentencing judge imposed only one extra day of jail time suggests
that the term served was an adequate punishment, and indicates that
pre-sentence custody was taken into account. However, there is nothing to
suggest that the judge thought 34 months was the appropriate
term of imprisonment.
[28]
The
IAD should be cautious in reaching a conclusion the result of which is to deny
a person the right of an appeal. The IAD should only reach the conclusion that
the punishment was intended as in excess of two years on clear evidence. This
record does not allow for such a conclusion.
IV. CONCLUSION
[29]
The
IAD has jurisdiction to consider Brown’s appeal. The IAD’s decision will be
quashed. The specific question of whether there is a right to an appeal will
not be referred back to another panel. The IAD is to proceed with the appeal in
the usual manner.
[30]
As
this judicial review, while based on a legal determination, is largely
fact-driven by the record at the sentencing hearing, no question will be
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
Immigration Appeal Division’s decision is quashed, and the matter will not be
referred back to another panel. The Immigration Appeal Division is to proceed
with the appeal in the usual manner.
“Michael
L. Phelan”
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