Conditional sentences don’t count as imprisonment for purpose of “serious criminality” deportations
In its unanimous decision in Tran v. Canada (Public Safety and Emergency Preparedness), released on October 19, the Supreme Court of Canada confirmed that a 12-month conditional sentence is not equivalent to imprisonment for the purpose of s. 36(1)(a) of the Immigration and Refugee Protection Act (IRPA).
The IRPA allows Canada to deport a permanent resident based on a finding of “serious criminality”. The relevant provision defines serious criminality as, among other things, being convicted for an offence for which the maximum sentence of imprisonment is 10 years or more, and/or for which the actual sentence imposed is more than six months’ imprisonment.
Mr. Tran, a permanent resident, was charged in 2011 with operating a marijuana grow operation. At the time, the maximum sentence for that crime was seven years’ imprisonment. After the commission of the offence but before Tran was convicted and sentenced, the maximum sentence was increased to 14 years. Tran was given a twelve-month conditional sentence.
The conviction led to the preparation of an “inadmissibility report” with respect to Tran. In 2013, an immigration official opted to act on the report by ordering an admissibility hearing before the Immigration Division of the Immigration and Refugee Board (IRB). The goal of this hearing would have been to assess whether Tran should be deported to Vietnam on the grounds of “serious criminality” under s. 36(1)(a) of IRPA.
Tran sought judicial review of the decision to order the hearing, and was successful. Then in 2015, the Minister of Public Safety and Emergency Preparedness successfully appealed that judicial review result in the Federal Court of Appeal. Tran in turn appealed to the Supreme Court of Canada.
In allowing Tran’s appeal (which means the decision about whether to recommend a hearing will be sent back down to a new Ministry delegate), the SCC held that a conditional sentence of 12 months is not “a term of imprisonment” for the purpose of s. 36 of the IRPA. The court also held that the increase in maximum term for the offence did not have retroactive effect for the purpose of the s. 36 definition.
As we have explained in previous articles describing the interplay between the criminal law and the IRPA, (see for example “Can a criminal conviction make your client inadmissible for residency/citizenship?”), lawyers who fail to appreciate the immigration consequences of criminal convictions can leave themselves open to allegations of malpractice. To the extent that it provides clarification about the definition of serious criminality, the decision in Tran may allow lawyers to making sentencing recommendations with greater certainty about immigration implications.