The Supreme Court of Canada recently consider in a landmark decision what the phrase “Term of imprisonment” meant within the context of s.36(1)(a) of the Immigration and Refugee Protection Act (IRPA).  The Court concluded that is does not include conditional sentences orders: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 34. A conditional sentence is a sentence that is served in the community.

The Supreme Court considered whether the maximum sentence to be considered for purposes of s.36(1)(a) of the IRPA is the maximum sentence that the accused could have received at the time of the commission of the offence, not the date of the admissibility decision. A permanent resident’s right to remain in Canada is conditional on complying with knowable obligations: Tran, above, at paras. 35 and 42.

Mr. Trans is a citizen of Vietnam; and was a permanent resident of Canada, which he obtained 1989. Sometime in March 2011, Mr. Tran was charged with production of a controlled substance in relation to a marijuana grow operation containing approximately 915 plants under Section 7(1) of the Controlled Drugs Substances Act (the “CDSA”). When the offence was alleged to have been committed by Mr. Tran, the maximum penalty for the offence was seven (7) years’ imprisonment. However, prior to a conviction being entered against Mr. Tran, the maximum sentence for the offence was increased to fourteen (14) years of imprisonment, with a new minimum sentence of two (2) years’ imprisonment, if the number of plants produced was greater than five-hundred (500). Mr. Trans was sentenced to a twelve (12) month conditional sentence.

The ministers counsel of the Minister of Public Safety and Emergency Preparedness (the Canada Border Service Agency) referred Mr. Tran’s case via section 44 of the Immigration and Refugee Protection Act (the “IRPA”) to the Immigration Division for an admissibility hearing, based on alleged inadmissibility due to “serious criminality” as set out in s.36(1)(a) of the IRPA.  That section is triggered when a conviction is entered for federal offence which carries the potential for a maximum sentence of at least 10 years.  Section 64(2) was also critical in this case because it precludes the possibility of an appeal against a removal order at the Immigration Appeal Division for a federal offence for which a term of imprisonment of more than six (6) months has been imposed.

The Federal Court (trial division) allowed the appellant’s application for judicial review.  That court held that a conditional sentence was not a “term of imprisonment” under the IRPA, and that, as seven (7) years was the maximum sentence available for Mr. Tran.  As such, the then maximum sentence of seven (7) did not establish serious criminality. That was based on retrospectivity principles. However, the Federal Court of Appeal disagreed with the Trial Division; and the panel of the Appeal Division of the Federal Court allowed the Minster’s appeal from the decision of the Federal Court, finding that the reviewing justice had failed to assess whether the interpretation adopted by the administrative decision maker fell within the range of interpretations defensible on the law and facts:  Tran, supra.

Enter the Supreme Court of Canada.  The highest court within the dominion of Canada held that, in this context, “term of imprisonment” does not include conditional sentences and that the relevant maximum sentence is that available at the time of the commission of the offence. The court noted that the meaning of “term of imprisonment” varies according to statutory context, and that jail sentences and conditional sentences of equivalent length are not commensurate. A conditional sentence of longer than six months may well accord with a jail sentence of less than six months. Conditional sentences are for less serious and non-dangerous offenders. It would be absurd, and would result in undesirable avoidance of conditional sentences, to consider conditional sentences to be terms of imprisonment under s.36(1)(a) of the IRPA that could support findings of serious criminality. What is more, while s.11(i) of the Charter did not apply to the decision of the Minister’s delegate, section 36(1)(a) of the IRPA does not engage the public protection exception to the presumption against retrospectivity. Accordingly, Mr. Tran’s conditional sentence was not a “term of imprisonment” and the maximum sentence he was eligible to receive was seven (7) years. The Supreme Court of Canada  quashed the Minister’s delegate’s referral of Mr. Tran’s case to the Immigration Division, as the delegate’s opinion and resultant decision to refer were premised on an untenable interpretation of the grounds for inadmissibility under s.36(1)(a) of the IRPA. The matter was remitted to a different delegate:  Tran, supra, for a re-determination under the binding applicable legal principles.

This case will have wide spread implications for many individuals who were previous convicted, received a CSO, and the Canada Border Service Agency is attempting either a referral to the Immigration Division of the Immigration and Refugee Board, or attempting to preclude an appeal at the Immigration and Appeal Division against a valid removal order made by the Immigration Division.