Lawyers in Mississauga Ontario Canada

Conditional Sentences and Immigration Inadmissibility Revisited

Today, October 19, 2017, the Supreme Court of Canada released an important decision in Tran v. Canada 2017 SCC 50 on conditional sentences of imprisonment and inadmissibility that is welcome news for non-citizens of Canada:

“..Additionally, while this Court’s analysis is not limited to the certified questions, in the interest of providing guidance on the legal questions addressed by the Federal Court and Federal Court of Appeal, I would answer those questions as follows:

  1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742  to 742.7  of the Criminal Code “a term of imprisonment” under s. 36(1) (a) of the IRPA ?

― No.

  1. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined?― It refers to the maximum term of imprisonment available at the time of the commission of the offence.”

See this link: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16803/index.do

To put the decision in context, Section 36 of the Immigration and Refugee Protection Act states:

  1. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

The Criminal Code and other federal laws specify maximum penalties for offences that are created by the legislation. In criminal matters, an offender can in various circumstances, be discharged, placed on probation, fined, sentenced to a period of imprisonment intermittently, conditionally or unconditionally.

To be found inadmissible to Canada in section 36(1)(a) of the Immigration and Refugee Protection Act, the offender must be sentenced to a period of imprisonment of more than six months OR the maximum possible term of imprisonment possible for the offence of which they were convicted is 10 years or more.

Prior to the Supreme Court decision in Tran v. Canada, the Federal Court of Appeal had ruled that a conditional sentence was considered a term of imprisonment for the purpose of finding a non-citizen inadmissible pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act.  With this decision non-citizens (permanent or temporary residents of Canada) will no longer be subject to inadmissibility proceedings and possible deportation as a result of being sentenced for to a conditional sentence of imprisonment.

Additionally, the Supreme Court of Canada clarified that the maximum term of imprisonment created by an offence refers to the law as it stood at the time the offender committed the offence and not on the date the offender was sentenced nor on the date the offender was referred to an inadmissibility hearing.

Hans John Kalina is a criminal defence and immigration lawyer in Mississauga, Ontario and can be reached at (416) 900-6999 or mail@lawyer4u.ca

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