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Conditional sentence did not represent term of imprisonment

In 1989, applicant arrived in Canada from Vietnam and became permanent resident. In 2013, he was convicted on charge of producing marijuana and given conditional sentence of 12 months to be served in community. Officer of Canadian Border Services Agency referred applicant’s file to Immigration Division to decide whether applicant should be found to be inadmissible to Canada for having been convicted of offence for which term of imprisonment greater than six months had been imposed, or offence punishable by maximum term of imprisonment of at least 10 years. Applicant applied for judicial review of officer’s decision. He asked court to overturn officer’s decision and order another officer to reconsider question of his inadmissibility to Canada. Application allowed. Applicant’s conditional sentence of 12 months did not represent term of imprisonment greater than six months. Conditional sentence was not term of imprisonment within meaning of Immigration and Refugee Protection Act (Can.). Applicant’s offence was punishable by maximum of seven years’ incarceration. While maximum sentence was subsequently raised to 14 years, applicant was not punishable by sentence of that duration. Officer should not have considered arrests and dropped charges that did not result in convictions. That rendered his decision unreasonable. Matter was referred back to another officer for reconsideration.
Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 4, 2014, F.C., James W. O’Reilly J., File No. IMM-7208-13) 246 A.C.W.S. (3d) 649.

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