Date: 20050527
Docket: IMM-4211-04
Toronto, Ontario, May 27th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MOHAMMED TOWFIC JAMIL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The central question in this application is whether the time that Mohammed Towfic Jamil spent in pre-trial detention should have been considered by the Immigration Appeal Division of the Immigration and Refugee Board in determining whether his right to appeal a deportation order had been extinguished by operation of section 64 of the Immigration and Refugee Protection Act ("IRPA").
Background
[2] Mr. Jamil is a 42 year old citizen of Iraq. He is a permanent resident in Canada, having been found to be a Convention refugee.
[3] In 1999, Mr. Jamil was convicted of one count of trafficking in narcotics, as a result of which a deportation order was issued against him in 2001. He filed a notice of appeal in relation to this order with the IAD, although it does not appear that the appeal proceeded at that time.
[4] In 2003, Mr. Jamil pled guilty to several criminal offences, including two further counts of trafficking in narcotics, as a result of which he was sentenced to a period of detention. This resulted in a second deportation order being issued against Mr. Jamil in 2004.
[5] Mr. Jamil then endeavoured to appeal this second deportation order to the IAD. However, after receiving submissions from the parties, the Board discontinued Mr. Jamil's 2004 appeal and dismissed his 2001 appeal.
[6] The appeal of the 2004 deportation order was discontinued pursuant to section 64 of IRPA, on the basis that Mr. Jamil had been involved in serious criminality, in that he had committed a crime for which he was punished by a term of imprisonment of more than two years.
[7] Mr. Jamil's first appeal was then dismissed on the grounds that, as the 2004 deportation order was enforceable, the appeal from the 2001 deportation order was moot.
[8] Mr. Jamil now seeks judicial review of the IAD's decision, asserting that the Board erred in finding that he had been punished by a term of imprisonment of more than two years, as the trial judge did not expressly include the period that Mr. Jamil spent in pre-trial custody in the sentence that he imposed.
[9] Mr. Jamil further submits that the Board erred in finding that his appeal of the 2001 deportation order was moot, and in failing to provide adequate reasons for its decision in this regard.
The Trial Judge's Reasons for Sentence
[10] On May 9, 2003, Justice Paul Bélanger of the Ontario Court of Justice passed sentence on Mr. Jamil, based upon the joint submission of counsel. The operative portion of Justice Bélanger's reasons for sentence provides:
... I recognize that you have, through your plea, avoided the necessity of protracted and lengthy litigation. I also recognize that your record, albeit related, is relatively limited. I recognize as well that this comes to me as a joint position and that you have now spent some 19 and a half months in pre-trial custody since September of 2001, likely in circumstances awaiting trial, which are a little bit more difficult than might the case if you were serving a sentence where you can receive appropriate counselling.
Therefore, in my view, the sentence submission made to me is not inappropriate and I abide by it. In relation to the first charge to which you have pled guilty, I sentence you to a term in jail of 15 months; in relation to the second to which I have found you guilty, 15 months concurrent; in relation to the third, the proceeds charge, 15 months concurrent, the Court's intention being that, in totality, you serve a term of 15 months.
[11] The trial judge went on to recommend that Mr. Jamil be incarcerated in a specific provincial facility, or such other place as, in the discretion of the authorities, would allow Mr. Jamil to receive meaningful counselling for substance abuse and gambling.
[12] The Warrant for Committal indicates that Mr. Jamil was imprisoned for a term of "Pre-trial custody - 19 ½ months + 15 months".
Issues
[13] Mr. Jamil raises two issues on this application. They are:
1. Whether 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 include the period that he spent in pre-trial custody in his sentence; and
2. Whether the IAD erred in relation to its finding that his appeal of the 2001 deportation order was moot.
Standard of Review
[14] I agree with the parties' submission that, to the extent that the IAD was called upon to interpret provisions of IRPA, the standard of review is one of correctness.
[15] However, the Minister also submits that, in determining the extent of the punishment that was actually imposed upon Mr. Jamil, the IAD was making a finding of fact, which should be reviewed against a standard of patent unreasonableness.
[16] I agree that there is a factual component to the issue identified by Mr. Jamil, although I note that in making its factual finding, the IAD was not relying upon the viva voce testimony of witnesses, but was instead drawing conclusions from documentary evidence, which evidence is now before this Court.
[17] As a result, the Court is in as good a position to determine what went on at Mr. Jamil's sentencing hearing as was the IAD. It is not necessary, however, to make a specific finding as to the consequences that this may have for the standard of review, as I am satisfied that the factual findings of the IAD in this regard were correct.
[18] Insofar as the second issue is concerned, that is, the question of whether the Board erred in relation to its finding that Mr. Jamil's appeal was moot, this involves a question of mixed fact and law, and is thus subject to review against a standard of reasonableness.
[19] Mr. Jamil also argues that the Board erred in failing to provide adequate reasons to support its finding that his appeal of his 2001 deportation order was moot. A question as to the adequacy of reasons raises an issue of procedural fairness. Issues of procedural fairness are decided against a standard of correctness: Fetherston v. Attorney General, 2005 FCA 111.
Relevant Statutory Provisions
[20] In order to address these issues, it is necessary to have regard to subsections 64(1) and (2) of IRPA, which provide:
| 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. |
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(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
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[21] Also of relevance are portions of section 719 of the Criminal Code, which provide that:
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[22] With this understanding of the relevant legislative provisions, I turn now to consider the issues raised by Mr. Jamil.
Did the IAD Err in Finding That Mr. Jamil Had Been Punished by a Term of Imprisonment of at Least Two Years?
[23] There have been a number of decisions of this Court dealing with the treatment of time served in pre-trial detention (also known as "dead time") as it relates to the two year requirement of subsection 64(2) of IRPA. Thus far, the Court has unanimously been of the view that time spent in pre-trial detention forms part of the term of imprisonment for the purposes of subsection 64(2) of IRPA: See Allen v. Minister of Citizenship and Immigration (May 5, 2003), IMM-2439-02; Atwal v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 63; Canada (Minister of Citizenship and Immigration) v. Smith [2004] F.C.J. No. 2159, 2004 FC 63; Canada (Minister of Citizenship and Immigration) v. Gomes [2005] F.C.J. No. 369, 2005 FC 299 and Cheddesingh (Jones) v. Minister of Citizenship and Immigration, 2005 FC 667.
[24] Mr. Jamil submits that these decisions are distinguishable from the present situation, as it appears that in each of these cases, the sentencing judges made express reference to the fact that he or she was factoring in the dead time served by the individual in question in arriving at an appropriate sentence.
[25] In contrast, Mr. Jamil says, in this case, Justice Bélanger did not expressly credit him with the time that he spent in pre-trial detention. Instead of treating it as a part of his sentence, Justice Bélanger treated Mr. Jamil's dead time as a mitigating factor in imposing sentence. Mr. Jamil submits that it is clear from a review of Justice Bélanger's reasons for sentence that the sentence imposed on him was 15 months, in total. As a consequence, he did not come within subsection 64(2) of IRPA, and his appeal should not have been discontinued.
[26] I do not accept this argument. While Justice Bélanger's reasons for sentencing do not expressly state that Mr. Jamil is being credited for the time that he spent in pre-trial detention, it is clear from a review of the reasons as a whole that Justice Bélanger took this into account in coming to the conclusion that the sentence proposed in the joint submission was appropriate.
[27] This interpretation is borne out by the wording of the Warrant for Committal, which indicates that Mr. Jamil was sentenced to "Pre-trial custody - 19 ½ months + 15 months".
[28] Moreover, the affidavit of the assistant Crown Attorney present for Mr. Jamil's sentencing establishes that, in accordance with the joint submissions of the parties, Mr. Jamil was actually given 39 months credit for the 19 ½ months that he spent in pre-trial detention, using a customary 2:1 ratio. When coupled with the additional 15 months sentence imposed by Justice Bélanger, Mr. Jamil was effectively given a sentence of 54 months.
[29] In support of his contention that his dead time should not be considered for the purposes of subsection 64(2) of IRPA, Mr. Jamil also points to the provisions of section 719(1) of the Criminal Code, which provide that a sentence ordinarily commences when it is imposed. Mr. Jamil submits that the sentence imposed by Justice Bélanger was 15 months.
[30] In my view, this argument is answered by the decisions of the Supreme Court of Canada in R. v. Wust, [2000] 1 S.C.R. 455 and the Ontario Court of Appeal in R. v. McDonald, (1998) 40 O.R.(3d) 641, which draw a distinction between the "punishment" imposed on an individual and that person's "sentence". While a sentence only commences when it is imposed, time spent in pre-trial detention will form part of the offender's punishment.
[31] In this regard, Justice Arbour noted in Wust at pp. 477 to 478 that "...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)" of the Criminal Code.
[32] Moreover, in R. v. Fice, 2005 SCC 32, the Supreme Court of Canada recently confirmed that time spent in pre-trial detention is part of the total punishment imposed on an offender.
[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.
[34] Mr. Jamil also points to the fact that Justice Bélanger directed that he be sent to a provincial facility, submitting that this would not have been possible if his sentence had been for more than two years. Once again, this argument is premised on the assumption that the punishment imposed on an offender is synonymous with the offender's sentence. As noted above, the Wust, Fice and McDonald decisions have established that this is not the case.
[35] As a result, leaving aside the question of whether any multiplier should be applied to the period of dead time in calculating the credit to which Mr. Jamil was entitled, when the 19 ½ months that Mr. Jamil spent in pre-trial detention is considered in conjunction with the 15 month sentence imposed by Justice Bélanger, it is clear that the punishment imposed upon Mr. Jamil exceeded two years in detention.
[36] I am therefore satisfied that the IAD was correct in concluding that Mr. Jamil's appeal of the 2004 deportation order was discontinued pursuant to section 64 of IRPA, on the grounds that he had been involved in serious criminality, having committed a crime for which he was punished by a term of imprisonment of more than two years.
Did the IAD Err in Relation to its Finding That Mr. Jamil's Appeal of the 2001 Deportation Order Was Moot?
[37] Mr. Jamil's argument on this point was brief, and not well-developed. However, as I understand his position, he is of the view that the IAD was wrong to dismiss his appeal of his 2001 deportation order without waiting to see whether his appeal of his 2004 deportation order ultimately succeeded.
[38] Further, Mr. Jamil says, the Board erred in failing to provide adequate reasons for its conclusions that his appeal of his 2001 deportation order was moot.
[39] As the Supreme Court of Canada noted in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the doctrine of mootness is part of a general policy that a court may decline to decide cases which raise merely hypothetical or abstract questions. An appeal will be moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties.
[40] Given that the Board concluded, rightly in my view, that Mr. Jamil had lost the right to appeal his 2004 deportation order, the question of whether or not he should be deported was decided. There was no longer a live controversy between the parties in relation to this issue, and a decision by the IAD in relation to Mr. Jamil's appeal of his 2001 deportation order would have had no practical effect on his right to stay in Canada (assuming that his right of appeal even survived in light of the coming into force of section 196 of IRPA: in this regard see Canada (Minister of Citizenship and Immigration) v. Medovarski, [2004] 4 F.C.J. No. 366 (C.A.)).
[41] Moreover, the Board's reasons on this point, although brief, effectively explained why it was of the view that Mr. Jamil's appeal of his 2001 deportation order was moot, and were adequate in the circumstances.
Conclusion
[42] For these reasons, the application is dismissed.
Certification
[43] Neither party suggested a question for certification. In light of the fact that questions were certified in both the Atwal and Smith cases, I gave careful consideration to whether a question should be certified for the Court of Appeal in this case.
[44] The question certified in both Atwal and Smith was:
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?
[45] In this case, however, it does not appear that Mr. Jamil takes issue with the general proposition that pre-trial custody can be properly included in the calculation of the punishment for the purposes of subsection 64(2) of IRPA, provided that the sentencing judge expressly includes the pre-trial dead time in his or her calculations in imposing sentence. What Mr. Jamil takes issue with here is whether, having regard to the precise words spoken by his sentencing judge, his own sentence included credit for his dead time. This is a case-specific question, and not one of general application. As a consequence, I have decided not to certify a question in this case.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4211-04
STYLE OF CAUSE: MOHAMMED TOWFIC JAMIL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 10, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: MAY 27, 2005
APPEARANCES:
Shoshana Green FOR APPLICANT
Mariana Stefanovic FOR RESPONDENT
SOLICITORS OF RECORD:
GREEN & SPIEGEL
Barristers & Solicitors
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada