[1] The appellant has lived in Canada since 1983. She became a permanent resident in1991. In April of 2002, she was convicted of importing cocaine into Canada contrary to subsection 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. For that offence she was sentenced to three years of imprisonment. She was released on parole after serving six months in prison and six months in a halfway house. Based on that conviction, the Immigration Division of the Immigration and Refugee Board found the appellant to be inadmissible to Canada on grounds of serious criminality pursuant to subsection 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. That provision reads as follows:

36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :

(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;

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 uneloi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;

(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

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;

©) 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.

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.

[2] The Immigration Division issued a deportation order. The appellant commenced an appeal to the Appeal Division of the Immigration and Refugee Board. Her appeal was dismissed on the motion of the Minister on the basis of section 64 of the Immigration and Refugee Protection Act, which reads 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 appellant applied to the Federal Court for judicial review of the decision of the Appeal Division. Her application for judicial review was dismissed by order dated January 17, 2005: Martin v. Canada (Minister of Citizenship and Immigration) (2005), 42 Imm. L.R. (3d) 104 (F.C.). The Judge certified the following questions:

(a) Does the word "punished" used in subsection 64(2) of the Immigration and Refugee Protection Act with respect to a term of imprisonment, refer to the sentence of imprisonment imposed or the actual time served in prison?

(b) Does subsection 64(2) of the Immigration and Refugee Protection Act violate section 7 of the Canadian Charter of Rights and Freedoms in a manner which cannot be justified under section 1 of the Charter?

[4] The appellant has abandoned the Charter argument on that basis that it cannot succeed, in light of 2005 SCC 51">Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51. For that reason, we will not deal with the second certified question.

[5] With respect to the first certified question, we are all of the view that the word "punished" in subsection 64(2) of the Immigration and Refugee Protection Act refers to the sentence imposed, not the actual duration of incarceration. On this point we agree with the reasoning of the Judge. We note that the same reasoning underlies the decision in Cartwright v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 98, 32 Imm. L.R. (3d) 79 (F.C.). It follows that subsection 64(2) applied in this case to deprive the appellant of the right to appeal to the Appeal Division of the Immigration and Refugee Board.

[6] This appeal will be dismissed.

"Karen R. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-126-05

STYLE OF CAUSE: CLAUDETTE MARTIN

(a.k.a. AVIS PETRONELLA CREARY)

Appellant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: OCTOBER 25, 2005

REASONS FOR JUDGMENT

OF THE COURT: (NADON, SEXTON, SHARLOW JJ.A.)

DELIVERED FROM THE

BENCH BY: SHARLOW J.A.

APPEARANCES:

Ronald Poulton FOR THE APPELLANT

Sally Thomas

Michael Butterfield FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mamann & Associates

Barristers & Solicitors

Toronto, Ontario FOR THE APPELLANT

John H. Sims, Q.C.

Deputy Attorney General of Canada FOR THE RESPONDENT

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Martin v. Canada (Minister of Citizenship and Immigration), 2005 FCA 347

Citations2005 FCA 347

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2005 FCA 347