Justice Mactavish concluded in this decision that an applicant’s pre-trial detention is correctly considered by the Immigration Appeal Division (IAD) to be part of 2 year punishment in determining whether the applicant can appeal his or her deportation order under section 64 of the Immigration and Refugee Protection Act (IRPA).

The relevant legislation is section 64 of the IRPA:

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.

And section 719 of the Criminal Code:

 

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…

Facts

Mr. Jamil is a 42 year old citizen of Iraq and a permanent resident in Canada, having been found to be a Convention refugee.  Mr. Jamil was convicted in 1999 of one count of trafficking in narcotics, as a result of which a deportation order was issued against him in 2001, which was appealed to the IAD. 

In 2003, Mr. Jamil pled guilty to several criminal offences, including two further counts of trafficking in narcotics as a result of which he spent 19 ½ months in detention. On May 9, 2003 the Ontario Court of Justice sentenced the applicant to a term of jail of 15 months in relation to the first charge to which he pled guilty, 15 months concurrent in relation to the second charge, 15 months concurrent in relation to the third.  The Court’s intention was for him to serve a term of 15 months in totality.  The trial judge recommended incarceration in a provincial facility or another place that would allow Mr. Jamil to receive counseling for substance abuse and gambling.  The Warrant for Committal indicates that Mr. Jamil was imprisoned for a term of “Pre-trial custody of 19 ½ months + 15 months”.

As a result of the trial judge’s sentencing decision, a second deportation order was issued in 2004. When Mr. Jamil appealed the deportation decisions to the IAD, the Board discontinued his 2004 appeal pursuant to section 64 of the IRPA and dismissed his 2001 appeal.  According to the Board, pursuant to section 64 of the IRPA, Mr. Jalil had been punished by a term of more than two years. 

Mr. Jamil sought judicial review of the IAD’s decision. The applicant asserted that the IAD erred in finding that he had been punished by a term of imprisonment of at least two years, given that the trial judge did not expressly refer to the period that he spent in pretrial custody.  The applicant pointed out that section 719(1) of the Criminal Code provides that a sentence commences when it is imposed.  As such, the sentence should be read as 15 months.  He also asserted that the IAD erred in its finding that his appeal of the 2001 deportation order was moot.

 Analysis

With respect to the IAD’s finding that Mr. Jamil had been punished by a term of imprisonment of at least two years, the Court found in favour of the Minister.

Justice Mactavish stated that the caselaw is clear that time in pre-trial detention forms part of the term of imprisonment for the purpose of subsection 64(2) of the IRPA.  In this case, the pre-trial time was part of the total term of imprisonment notwithstanding the fact that the trial judge did not explicitly refer to the pre-trial time in the sentencing decision. 

The affidavit of the assistant Crown Attorney present for Mr. Jamil’s sentencing established that the applicant was actually given 39 month credit for the 19 1/2  months that he spent in pretrial detention using a customary ration 2:1.  As such, coupled with the additional 15 months, his sentence was effectively 54 months.

Justice Mactavish pointed out that although section 719 of the Criminal Code states that a sentence starts when it is imposed, the Supreme Court of Canada in R v Wust, 2000 SCC 18 and the Court of Appeal in R v McDonald 1998 CanLI 13327decided  that time spent in pretrial detention will form part of the offender’s punishment. Section 64 of the IRPA is not concerned with the length of the sentence imposed on the offender, but with the punishment in its totality.  Once a person is convicted of a crime, the time served by that individual in pretrial detention will count towards punishment.

As such, it is clear that the punishment imposed upon the applicant is 19 ½  months in pretrial detention along with the 15 months imposed by the trial judge, which exceeds 2 years in total, catching the applicant within section 64 of the IRPA.  Justice Mactavish concluded that the IAD was correct in it decision to dismiss the applicant’s appeal of the 2004 deportation order. 

With respect to the 2001 deportation order, the Court concluded that given that the Board correctly concluded that the applicant had lost the right to appeal his 2004 deportation order, the applicant’s 2001 deportation order would have had no practical effect on his right to stay in Canada. 

The application was, therefore, dismissed.