21/02/2018 - Mario Bellissimo
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Canadian Immigration Blog
Supreme Court Issues Decision in Criminal Inadmissibility Case
The Supreme Court’s long-awaited decision in the Tran case has just been released. The decision clarifies two crucial issues regarding criminal sentencing and the impact that sentences will have on permanent residents of Canada.
By way of background, Mr. Tran, a permanent resident of Canada, was charged with participating in a marijuana growing operation, which carried a potential penalty of up to seven years in prison at the time of the offence was committed. Before he was convicted, however, the maximum penalty for the offence was raised to fourteen years.
Mr. Tran was ultimately convicted of the offence and sentenced to a 12-month conditional term of imprisonment. As a result of the conviction, an immigration officer prepared a report alleging that that he was inadmissible to Canada under paragraph 36(1)(a) of the Immigration and Refugee Protection Act (“IRPA ”), which in turn led to a decision to refer the matter to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing, where a removal order would be issued.
Mr. Tran applied for judicial review of the decision to refer the matter to the Immigration Division. In the first instance, the Federal Court found that the offence did not come within s. 36(1)(a) of the IRPA and that the decision to refer the matter was unreasonable. However, the Court of Appeal subsequently reversed the Federal Court decision, leading to the case being heard by the Supreme Court.
In their decision, the Supreme Court first explained that conditional sentences as defined in the Criminal Code do not count as “terms of imprisonment” under paragraph 36(1)(a) of the IRPA. In support of this conclusion, the Court noted:
Since more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes, it would be an absurd outcome if less serious and non‑dangerous offenders who received conditional sentences were deported, while more serious offenders receiving jail terms shorter than those conditional sentences were permitted to remain in Canada. Public safety, as an objective of the IRPA, is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.
Second, the Court found that, when deciding whether a permanent resident is inadmissible to Canada, the determination hinges on the maximum sentence in place at the time they committed the offence and not when they are convicted. This is because of the well-recognized presumption against retrospective application of changes in the law, and the absence of any indication that Parliament meant for changes in sentencing to apply retrospectively.
This is a landmark case that will undoubtedly impact many permanent residents convicted of crimes. Our congratulations to those who worked hard to obtain this outcome.