Permanent Residents who Receive Conditional Sentences are not Inadmissible, The Lawyer’s Daily (November 16, 2017)

Conditional sentences are sentences of imprisonment that are served in the community. They are meant as an alternative to incarceration for less serious offences and non-dangerous offenders.

In Tran v. Canada (Minister of Public Safety and Emergency Preparedness) 2017 SCC 50, the Supreme Court of Canada considered a vexing question of whether a conditional sentence is captured in the meaning of the phrase “a term of imprisonment of more than six months” in paragraph 36(1)(a) of the Immigration and Refugee Protection Act (IRPA), which provides the basis for finding a permanent resident inadmissible to Canada for “serious criminality.” The court found that the phrase does not include conditional sentences.

In Tran, Thanh Tam Tran, a citizen of Vietnam, acquired permanent resident status in Canada in 1989. In March 2011, he was involved in a marijuana grow operation, containing about 915 plants, and he was charged with production of a controlled substance. At the time of the commission of the offence, the maximum penalty, if convicted, was seven years in prison. However, on Nov. 6, 2012, the maximum prison sentence was statutorily increased to 14 years. Ultimately, Tran was convicted and received a 12-month conditional sentence of imprisonment to be served in the community.

On Oct. 7, 2013, a Canada Border Services Agency officer prepared a report in which he formed an opinion that Tran was inadmissible to Canada for “serious criminality” under s. 36(1)(a) of the IRPA. Consequences flowing from the finding of inadmissibility on such grounds are harsh, including the loss of the right to appeal a removal order.

Having reviewed the officer’s report, a delegate of the minister of citizenship and immigration endorsed it and referred Tran’s case to the Immigration Division for an admissibility hearing. In response, Tran applied for judicial review of that decision. On this specific point, the Supreme Court cautioned that while courts have the discretion to hear an application for judicial review prior to completion of the administrative process and the exhaustion of the appeal mechanism, they should exercise restraint before doing so.

At the judicial review, Federal Court Justice James O’Reilly found that Tran’s conditional sentence was not a “term of imprisonment” under the IRPA and ordered another officer to reconsider the question of Tran’s inadmissibility. Nevertheless, he certified two questions of general importance, which permitted the minister to appeal his decision to the Federal Court of Appeal.

The Appeal Court unanimously allowed the minister’s appeal. Regarding the actual term of imprisonment imposed, the court explained that if Parliament considers a conditional sentence of at least six months to be sufficiently serious to warrant the loss of appeal, it was not unreasonable for the minister to interpret a conditional sentence as a “term of imprisonment.” But in a 9-0 decision, the Supreme Court disagreed with the Appeal Court’s conclusion, stating that such an interpretation of s. 36(1)(a) of IRPA would lead to absurd consequences.

The high court reaffirmed that conditional sentences generally indicate less serious criminality than jail terms and are imposed for less serious and non-dangerous offenders. Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes — shorter because they are served in jail, rather than in the community.

Consequently, it would be an absurd outcome, if, for example, less serious and non-dangerous offenders sentenced to seven-month conditional sentences were deported, while minor serious offenders receiving six-month jail terms were permitted to remain in Canada. It would also be absurd for permanent residents to seek prison sentences instead of conditional sentences so that they can remain in Canada.

Tran is an important decision from the perspective of both immigration and sentencing law.

In immigration law, the ruling clarified that for the purposes of s. 36(1)(a) of the IRPA, the phrase “a term of imprisonment” does not include a conditional sentence. Consequently, permanent residents who received conditional sentences would neither be inadmissible for “serious criminality” nor at risk of deportation, and their statutory right to appeal a removal order would remain intact.

In sentencing law, it clarified that for the purposes of s. 36(1)(a) of the IRPA, the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence, and not at the time the person was convicted, sentenced or admissibility to Canada is determined.

In Tran, the Supreme Court issued a reminder that sentencing judges are required to take collateral immigration consequences into account. Criminal lawyers should co-ordinate with a client’s immigration lawyer, so that the issue of adverse immigration consequences can be discussed with the Crown at an early stage and brought to the sentencing judge’s attention with a view to fashion an appropriate sentence.