Date: 20040108
Docket: IMM-3260-03
Citation: 2004 FC 7
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
IQBAL SINGH ATWAL
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated April 8, 2003. In this decision, the IAD dismissed the Minister's application to discontinue the respondent's appeal and stay of a deportation order since the respondent did not receive a term of imprisonment of over two years, as required by subsection 64(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA").
[2] The respondent is 26 years of age and is a citizen of India. The respondent was granted landing on January 26, 1990, but he is not a Canadian citizen. While in Canada, the respondent was convicted of two counts of robbery and one count of use of an imitation of a firearm. The first robbery was committed on October 5, 1996 and the second robbery as well as the use of the imitation firearm was committed on December 14, 1996.
[3] On January 18, 1999, the respondent was sentenced as follows:
Count #1 - Robbery: "The accused having served 20 months of pre-sentence custody is credited with 3 ½ Year (sic) of pre-sentence custody. The accused is sentenced to an additional 6 Months and to a Sec. 100(1) CCC Order for 10 years";
Count #2 - Robbery: "6 Months Concurrent";
Count #3 - Use of an Imitation of a Firearm: "1 Year consecutive to Count #1".
[4] On February 9, 1999, a report was prepared pursuant to paragraph 27(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), because the respondent was,
A person who has been convicted of an offence under any Act of Parliament . . . for which a term of imprisonment of more than six months has been, or five years or more may be, imposed.
[5] On February 10, 1999, on the basis of the above stated report and pursuant to subsection 27(3), the Minister directed that a determination be made in order to establish whether the respondent is a person described in paragraph 27(2)(a), 27(2)(e) or 27(2)(h) or (k). Following the inquiry on May 26, 1999, a deportation order was issued on the basis that the respondent had been convicted of an offence for which he received a sentence of more than six months.
[6] The respondent filed an appeal on May 26,1999 and on July 18, 2000, the IAD granted the respondent a stay of deportation order. However, the stay contained eight conditions, one of which was that the respondent report in person to an immigration officer on specified dates every six months, though these dates were later amended. On January 15, 2003, the IAD reviewed the respondent's stay and it was discovered that he had not reported to an immigration officer since October of 2000.
[7] Section 197 of the IRPA provides that where the respondent has breached the conditions of his stay, he shall be subject to subsection 64(2) of the IRPA, which states that no appeal may be made to the IAD if a foreign national or permanent resident has been found inadmissible on the grounds of serious criminality, or "with respect to a crime that was punished in Canada by a term of imprisonment of at least two years."
[8] A decision on the review of the stay was reserved pending submissions from the parties on the applicability of section 197 of the IRPA and the Minister then submitted a Notice of Discontinuance of Appeal. The IAD treated this Notice as an application to discontinue the respondent's appeal, and on April 8, 2003, the IAD denied the Minister's application for an order to discontinue the respondent's appeal.
[9] The IAD based its dismissal of the Minister's application on the following grounds:
- the respondent only received a term of imprisonment of six months, as pre-sentence custody does not form part of the term of imprisonment; and,
- the respondent, therefore, is not subject to section 64 of the IRPA, despite his admitted breach of the reporting conditions of his stay.
[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), IMM-2439-02, 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 ½ 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.
[. . .]
(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 où 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.
[16] For all the above reasons, the application for judicial review is granted and the matter is remitted for rehearing by a differently constituted panel.
[17] The following question, jointly proposed by counsel for the parties, is certified:
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 Immigration and Refugee Protection Act?
JUDGE
OTTAWA, ONTARIO
January 8, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3260-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. IQBAL SINGH ATWAL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 9, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: January 8, 2004
APPEARANCES:
Ms. Amina Riaz FOR THE APPLICANT
Mr. M. Max Chaudhary FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Chaudhary Law Office FOR THE RESPONDENT
Barristers & Solicitors
North York, Ontario