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EXCLUSION (INADMISSIBLE PERSONS) - Grounds for inadmissibility - Criminality

Thursday, October 19, 2017 @ 2:07 PM  


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Appeal by Tran from a judgment of the Federal Court of Appeal setting aside a decision granting the judicial review of a decision by the Minister to refer a report concerning Tran’s admissibility to the Immigration Division. The appeal concerned the obligation of permanent residents to avoid “serious criminality”, as set out in s. 36(1)(a) of the Immigration and Refugee Protection Act (IRPA). This obligation was breached when a permanent resident was convicted of a federal offence punishable by a maximum term of imprisonment of at least 10 years, or of a federal offence for which a term of imprisonment of more than 6 months had been imposed. Tran was a citizen of Vietnam. He had acquired permanent resident status in Canada in 1989. In 2011, he was involved in a marihuana grow operation containing approximately 915 plants and was charged with production of a controlled substance under s. 7(1) of the Controlled Drugs and Substances Act (CDSA). At the time of the commission of the offence, the maximum penalty upon conviction was seven years of imprisonment. On November 6, 2012, the maximum sentence for the offence was increased to 14 years of imprisonment and a new minimum sentence of 2 years of imprisonment was legislated in circumstances where the number of plants produced was more than 500. On November 29, 2012, Tran was convicted of the charge against him. In January 2013, he received a 12-month conditional sentence. After Tran was convicted and sentenced, Canada Border Services Agency (CBSA) officers prepared reports stating that Tran was inadmissible to Canada under s. 36(1)(a) of the IRPA. In October 2013, the Minister’s delegate referred the matter for an admissibility hearing before the Immigration Division. Tran then applied for judicial review of the delegate’s decision. The Federal Court found the decision to be unreasonable on the basis that Tran’s conditional sentence was not a “term of imprisonment” under the IRPA. The Federal Court of Appeal allowed the Minister’s appeal. At issue was whether a conditional sentence consisted of a “term of imprisonment” for the purposes of s. 36(1)(a) and whether, when the maximum sentence for an offence had changed over time, the “maximum term of imprisonment” referred to at s. 36(1) should be taken to be the maximum sentence that could have been imposed at the time of the commission of the offence, of the conviction, of sentencing or of the determination as to the permanent resident’s admissibility to Canada.

HELD: Appeal allowed. Conditional sentences were not captured in the meaning of “term of imprisonment” in s. 36(1)(a) of the IRPA. The seriousness of criminality punished by a certain length of jail sentence was not the same as the seriousness of criminality punished by an equally long conditional sentence. Conditional sentences generally indicated less “serious criminality” than jail terms. If s. 36(1)(a) was interpreted such that a conditional sentence was a “term of imprisonment”, absurd consequences would follow. For example, it would be an absurd outcome if less serious and non-dangerous offenders sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Accordingly, the phrase “term of imprisonment” in s. 36(1)(a) of the IRPA could not, by either standard of review, be understood to include conditional sentences. Further, the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1)(a) referred to the maximum sentence that the accused person could have received at the time of the commission of the offence. This interpretation aligned with the purpose of the IRPA, as outlined in s. 3. The obligations of permanent residents had to be communicated to them in advance. When Tran committed his offence, he could not have been aware that doing so was an act of “serious criminality” that might breach his obligations and lead to deportation. The presumption against retrospectivity lent further support to this conclusion. The maximum sentence that Tran could have received at the time of the offence was only seven years. Thus he was not convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years”. The Minister’s delegate formed the opinion that a CBSA officer’s report on Tran’s inadmissibility for serious criminality was well founded, and he referred the report to the Immigration Division on that basis. Because the Minister’s opinion was premised on an untenable interpretation of the grounds for inadmissibility under s. 36(1)(a), his decision to refer the report could not be sustained. Accordingly, the decision of the Minister’s delegate was quashed and the matter was remitted to a different delegate.

Tran v. Canada (Public Safety and Emergency Preparedness), [2017] S.C.J. No. 50, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J.Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., October 19, 2017. Digest No. TLD-October162017011SCC