Ottawa, Ontario, February 3, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
NADINE KAREN CHEDDESINGH (JONES)
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[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 (Act), of the decision of the Immigration Appeal Division (the Tribunal) of the Immigration and Refugee Board (IRB) finding that the applicant had no right to appeal the removal order made against her by the Immigration Division because she fell within the definition of "serious criminality" under section 64 of the Act.
ISSUES
[2] The applicant raises the following two issues:
1. Did the Tribunal commit a reviewable error in determining that the period the applicant spent in pre-sentence custody formed part of the "term of imprisonment" under subsection 64(2) of the Act?
2. If the answer to question 1 is negative, did the Tribunal commit a reviewable error in determining that the applicant had been punished by a term of imprisonment that exceeded two years?
[3] For the following reasons, the above questions are answered negatively. The application shall be dismissed.
BACKGROUND
[4] The applicant is a 52 year-old citizen of Jamaica. She became a permanent resident of Canadain 1981, but never became a Canadian citizen.
[5] On September 20, 2002, the applicant pled guilty to several criminal charges, including the attempted abduction of an infant under sections 281 and 463 of the Criminal Code, R.S.C. 1985, c. C- 46 (Criminal Code).
[6] On December 12, 2002, she had been held in pre-sentence custody for 14 months, and was sentenced to an additional term of imprisonment of nine months and a year's probation. After declaring a sentence of two and a half years for the attempted abduction and a consecutive sentence of three months for lesser infractions, the judge credited the applicant with 21 months served for the 14 months she had already spent in pre-sentence custody. The applicant was therefore sentenced to spend another nine months in prison, plus three years' probation.
[7] The Immigration Division of the IRB found the applicant inadmissible on grounds of being convicted of an offence for which she was punished by a term of imprisonment of at least six months, and ordered her removal on March 23, 2003. The applicant filed an appeal of her removal order before the Tribunal pursuant to subsection 63(3) of the Act the same day.
[8] The respondent filed a motion before the Tribunal to have it decline jurisdiction to hear the applicant's appeal, arguing that section 64 of the Act precluded persons who had been found inadmissible on grounds of serious criminality from making an appeal to the Tribunal. The Tribunal dismissed the respondent's motion on October 23, 2003.
[9] The respondent sought leave for judicial review by this Court of the dismissal of this motion by the Tribunal, but his application for leave was denied in June 2004.
[10] Prior to the hearing of the applicant's appeal, the respondent filed another similar jurisdictional motion before the Tribunal. On February 28, 2005, this second motion was granted by the Tribunal, which found that section 64 of the Act did apply in this case and the applicant's appeal was dismissed.
[11] The applicant applied before this Court for a stay of the removal order issued against her pending the disposition of the current application. This motion was dismissed by Mosley J. on May 11, 2005 (Cheddesingh v. Canada(Minister of Citizenship and Immigration), 2005 FC 667.
DECISION UNDER REVIEW
[12] Paragraphs 10-13 of the Tribunal's reasons read as follows:
I carefully reviewed the reasons for sentencing as previously stated and it is clear that the appellant received a sentence of 32 [sic] months in taking into consideration and by giving her credit for the time spent in pre-trial custody. Therefore, the appellant received a sentence of well over 2 years.
There is no doubt that in enacting section 64 of the IRPA Parliament intended to limit the right of appeal by permanent residents ordered deported for criminality from that which previously existed under the former Immigration Act. [R.S.C. 1985, c. I-2, as amended]
I am bound by the decision of the Federal Court, Trial Division, in Atwal [v. Canada(Minister of Citizenship and Immigration) [2004] FC 7] and pre-trial custody, when expressly factored into a criminal sentence, like in the case at bar, is part of the sentence received and should be considered. Concluding otherwise would defeat the intent of Parliament in enacting section 64 of the IRPA.
For the reasons set out above, I find that Ms. Nadine Karen CHEDDESINGH (JONES) has lost her right of appeal to the IAD by virtue of section 64 of the IRPA.
ANALYSIS
[13] The relevant provisions of the Act read as follows:
| 63. (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
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63. (3) Le résident permanent ou la personne protégée peut interjeter appel de la mesure de renvoi prise au contrôle ou à l'enquête. |
| 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. |
[14] Subsections 719(1), 719(3), and 719(4) of the Criminal Code read as follows:
| 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.
(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence. |
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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.
(4) Malgré le paragraphe (1), une période d'emprisonnement, infligée par un tribunal de première instance ou par le tribunal saisi d'un appel, commence à courir ou est censée reprise, selon le cas, à la date où la personne déclarée coupable est arrêtée et mise sous garde aux termes de la sentence. |
[15] The issues raised by the applicant are questions of law, since they relate to the interpretation of the Act by the Tribunal. The applicable standard of review is therefore one of correctness (Pushpanathan v. Canada(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Jamil v. Canada (Minister of Citizenship and Immigration), 2005 FC 758, Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FC 7, Sherzad v. Canada(Minister of Citizenship and Immigration), 2005 FC 757).
1. Did the Tribunal commit a reviewable error in determining that the period the applicant spent in pre-sentence custody formed part of the "term of imprisonment" under subsection 64(2) of the Act?
[16] This issue revolves around the meaning of "punished by a term of imprisonment of at least two years" in subsection 64(2) of the Act.
[17] The applicant submits that the proper interpretation of these terms is the following: the term of imprisonment is the sentence imposed by a judge at the time of sentencing, after taking into account various sentencing factors, including time spent in pre-sentence custody. In short, the interpretation proposed by the applicant would only compute the time a person is sentenced to spend in custody as of the date of the sentence, and the time spent in pre-sentence custody should not be taken into account.
[18] According to this interpretation, the applicant's term of imprisonment would amount to a year instead of thirty months.
[19] The applicant's proposed interpretation goes against the existing jurisprudence on this issue.
[20] In R. v. Wust, [2000] 1 S.C.R. 455, Justice Arbour wrote at paragraph 41:
[...] 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). [...]
[21] The applicant submits that in, Atwal, supra, Pinard J. misinterpreted Wust when he found that time spent in pre-sentence custody should be included in the computation of a term of imprisonment for the purposes of section 64 of the Act. At paragraph 15, he wrote:
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.
[22] With respect for her counsel's capable arguments, I do not agree with the applicant's proposed interpretation of what constitutes a term of imprisonment for the purposes of section 64. I agree with Pinard J.'s findings in Atwal, supra and the jurisprudence of this Court on this issue is unanimous.
[23] In Canada(Minister of Citizenship and Immigation) v. Smith, 2004 FC 63, Campbell J. determined that pre-sentence custody, credited toward a person's criminal sentence, formed part of the term of imprisonment under subsection 64(2) of the Act. In Jamil, supra, Mactavish J. came to a similar conclusion and wrote at paragraph 33:
It bears repeating at this juncture that subsection 64(2) of IRPA is not concerned with the length of the sentence imposed on the offender, but with the punishment. It is clear from the jurisprudence that once a person is convicted of a crime, the time served by that individual in pre-trial detention will be deemed to be part of the offender's punishment.
[24] I therefore conclude that the applicant's proposed interpretation is contrary to the intent of Parliament in drafting subsection 64(2) of the Act, and I find that the Tribunal did not commit a reviewable error in determining that the period the applicant spent in pre-sentence custody formed part of her "term of imprisonment".
2. If the answer to question 1 is negative, did the Tribunal commit a reviewable error in determining that the applicant had been punished by a term of imprisonment that exceeded two years?
[25] The applicant submits that since she spent 14 months in pre-sentence custody and was sentenced to a further nine months of incarceration, her sentence was of 23 months, less than the two years specified in subsection 64(2) of the Act. She argues that the Tribunal erred in law in determining that she had lost her right to appeal the removal order made against her.
[26] The applicant also states that this Court should only consider the warrant of committal in order to determine the length of her term of imprisonment instead of the transcript of the presiding judge's reasons.
[27] With respect, I disagree with these arguments. The transcript of the judge's reasons clearly indicated that the 14 months she spent in pre-sentence custody were credited as twenty-one months in the computation of her sentence. The terms "sentence" and the "term of imprisonment" are not synonymous. While the applicant was sentenced to be incarcerated for nine months, her term of imprisonment was of 30 months, more than the two years specified in subsection 64(2) of the Act.
[28] The applicant submitted the same argument before Mosley J., and he also rejected it. At paragraphs 11 to 14, he wrote:
It is clear from the transcript of the sentencing hearing in this case, that the trial Judge believed that the gravity of the major crime for which sentence was being imposed required a term of imprisonment of two and a half years. The attempted abduction was a serious crime that the applicant pursued to the door of the neo-natal unit until suspicions were aroused and security was summoned. A child's life and health could have been placed in jeopardy had she managed to succeed in her plan.
Applying Justice Pinard's reasoning from Atwal, the total punishment in this case was 30 months consisting of the 14 months credited as 21 plus the 9 months additional imposed. Thus interpreted, it exceeds the 24 month limit and meets the standard of "serious criminality" established by ss. 64(2).
The Supreme Court of Canada has held, in the context of determining whether mandatory minimum penalties under the Criminal Code can withstand Charter scrutiny, "...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 ..." per Arbour J.for an unanimous Court in R.v. Wust, [2000] 1 S.C.R. 455 at pp.477 to 478 [emphasis added].
One effect of Wust is that it is now clear that a calculation of the term of imprisonment imposed upon an offender is not limited to the post-conviction sentence together with the actual time served in pre-sentence detention. The Supreme Court accepted that credits for time served count towards determining the extent of the punishment imposed. It would be inconsistent with Wust and contrary to the Parliamentary intent in enacting IRPA section 64, in my view, for this Court to conclude that such credits are not to be taken into account in determining whether the punishment imposed by the criminal courts meets the test of "serious criminality".
[29] I agree with Mosley J.'s findings on this issue, which were followed in Canada(Minister of Citizenship and Immigration) v. Gomes, 2005 FC 299 and Sherzad, supra. In the latter decision, Mactavish J. wrote at paragraphs 57 to 61:
Thus, the credit given to an offender for the time served prior to conviction is deemed part of the offender's "punishment". It would, in my view, be inappropriate for an offender to be able to argue in the criminal context that his or her sentence should be reduced in light of the time that the individual spent in pre-trial detention, and then to be able to turn around in the immigration context and say that no consideration should be given to the period spent in pre-trial detention, and that only the period of the sentence should be considered for the purposes of subsection 64(2) of IRPA.
As Justice Mosley noted in Cheddesingh (Jones), such an interpretation would be inconsistent with the teachings in Wust, and with the Parliamentary intent in enacting section 64 of IRPA.
Further, to accept Mr. Sherzad's interpretation of subsection 64(2) would lead to an absurd result. By way of example, if an individual charged with an offence were to plead guilty on arrest, and receive a sentence of two years, that individual would have his or her right of appeal to the IAD extinguished by operation of subsection 64(2). Another individual, charged with the same offence in identical circumstances, might choose to go to trial. If convicted, that individual would receive credit for any time spent in pre-trial detention, and have his or her sentence reduced accordingly to something less than two years. In such circumstances, the second offender would still have a right of appeal to the IAD.
Similarly, an offender who spends two years in pre-trial detention, and is then sentenced to 'time served' would, on Mr. Sherzad's interpretation of the provision, have received no 'punishment' for the purposes of subsection 64(2).
Such an interpretation would provide a positive incentive for offenders to use pre-trial delay to circumvent subsection 64(2), which cannot have been Parliament's intent.
[30] For these reasons, I find that the Tribunal did not err in determining that the applicant had lost her right to appeal because she had been punished by a term of imprisonment of more than two years.
[31] The applicant submits the following questions for certification:
1. 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?
2. Where must the pre-sentence custody be "expressly credited" for it to form part of the "term of imprisonment" under section 64(2) of IRPA?
[32] The respondent asserts that these questions should not be certified but submits that if the Court decides to the contrary, the first question should be the appropriate one. I agree.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. The following question is certified:
1. 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?
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2453-05
STYLE OF CAUSE: NADINE KAREN CHEDDESINGH (JONES)
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 1, 2006
APPEARANCES:
Catherine Vasilaros FOR RESPONDENT
SOLICITORS OF RECORD:
Jack C. Martin FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General