CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Permanent Residents
Judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board (IAD) finding respondent’s pre‑sentencing custody not forming part of respondent’s term of imprisonment for purposes of determining serious criminality under Immigration and Refugee Protection Act (IRPA), s. 64(2)—Respondent, citizen of Guyana, permanent resident of Canada—Convicted of aggravated assault, serving sentence of one year in addition to time served credited as 32 months—Immigration Division issuing deportation order against respondent at admissibility hearing—Respondent appealing order to IAD—IAD faced with preliminary question of whether respondent having right of appeal given IRPA, s. 64 providing that minimum two‑year term of imprisonment precluding right of appeal of removal order—Definition of serious criminality in s. 64(2) referring to crime punished in Canada by two‑year term of imprisonment—Section referring to imprisonment (punish-ment), not sentence of at least two years—Pre‑sentencing custody deemed part of punishment—Sentencing judge considering pre‑sentencing custody as part of punishment imposed—Therefore, respondent punished by term of imprisonment of at least two years—Board failing to consider respondent’s pre‑sentencing custody in determining whether IRPA, s. 64(2) applying—Application allowed— Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64.
Canada (Minister of Citizenship and Immigration) v. Gomes (IMM‑6689‑03, 2005 FC 299, O’Keefe J., order dated 25/2/05, 8 pp.)