CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Removal of Permanent Residents |
Canada (Minister of Citizenship and Immigration) v. Atwal
IMM-3260-03
2004 FC 7, Pinard J.
8/1/04
5 pp.
Judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board (IAD) dismissing Minister's application to discontinue respondent's appeal and stay of deportation order since respondent did not receive term of imprisonment of over two years, as required by Immigration and Refugee Protection Act (IRPA), s. 64(2)--Respondent convicted of two counts of robbery, one count of use of imitation firearm--After credit for 20 months pre-sentence custody, sentenced to 6 months concurrent for first two counts, and one year consecutive for third--In not considering pre-sentence custody, IAD erroneously focussed on narrow interpretation of "sentence", "term of imprisonment" and ignored principles set out in R. v. Wust, [2000] 1 S.C.R. 455 and in Allen v. Canada (Minister of Citizenship and Immigration), IMM-2439-02, Snider J., judgment dated 5/5/03, F.C.T.D.--IAD also erred in failing to consider purposes of IRPA and sentencing principles expressed in Criminal Code--Failed to appreciate reality of sentencing-- Criminal Code, s. 719(3) authorizes considera-tion of pre-sentence custody in determining custodial sentence--With IRPA, s. 64, Parliament sought to set objective standard of criminality beyond which permanent resident loses appeal right--Parliament presumed to have known reality time spent in pre-sentence custody used to compute sentences under Criminal Code, s. 719--Omitting consideration of pre-sentence custody under IRPA, s. 64 when expressly factored into criminal sentence would defeat intent of Parliament in enacting this provision--Application allowed-- Question certified: does pre-sentence custody, expressly credited towards criminal sentence, form part of "term of imprisonment" under s. 64(2) of Immigration and Refugee Protection Act?--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64(2)--Criminal Code, R.S.C., 1985, c. C-46, s. 719(3) (as am. by S.C. 1995, c. 22, s. 6).